PART II.--ADMINISTRATION_Copyright: Its History and Its Law

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Richard Rogers Bowker

THE ARTS OF LIFE.

OF BUSINESS.

OF POLITICS.

OF RELIGION.

OF EDUCATION.

HOUGHTON MIFFLIN COMPANY

BOSTON AND NEW YORK

ITS HISTORY AND ITS LAW

BEING A SUMMARY OF THE

PRINCIPLES AND PRACTICE OF COPYRIGHT

WITH SPECIAL REFERENCE TO

THE AMERICAN CODE OF 1909 AND

THE BRITISH ACT OF 1911

RICHARD ROGERS BOWKER

BOSTON AND NEW YORK

HOUGHTON MIFFLIN COMPANY

The Riverside Press Cambridge

1912

FOR ALL COUNTRIES

_Published March 1912_

FOREWORD

{Sidenote: Copyright progress}

The American copyright code of 1909, comprehensively replacing all previous

laws, a gratifying advance in legislation despite its serious restrictions

and minor defects, places American copyright practice on a new basis. The

new British code, brought before Parliament in 1910, and finally adopted in

December, 1911, to be effective July 1, 1912, marks a like forward step for

the British Empire, enabling the mother country and its colonies to

participate in the Berlin convention. Among the self-governing Dominions

made free to accept the British code or legislate independently, Australia

had already adopted in 1905 a complete new code, and Canada is following

its example in the measure proposed in 1911, which will probably be

conformed to the new British code for passage in 1912. Portugal has already

in 1911 joined the family of nations by adherence to the Berlin convention,

Russia has shaped and Holland is shaping domestic legislation to the same

end, and even China in 1910 decreed copyright protection throughout its

vast empire of ancient and reviving letters. The Berlin convention of 1908

strengthened and broadened the bond of the International Copyright Union,

and the Buenos Aires convention of 1910, which the United States has

already ratified, made a new basis for copyright protection throughout the

Pan American Union, both freeing authors from formalities beyond those

required in the country of origin. Thus the American dream of 1838 of "a

universal republic of letters whose foundation shall be one just law" is

well on the way toward realization.

{Sidenote: Field for the present treatise}

In this new stage of copyright development, a comprehensive work on

code. Neither Eaton S. Drone nor George Haven Putnam were disposed to enter

upon the task, which has therefore fallen to the present writer. He hopes

that his participation for the last twenty-five years in copyright

development,--during which, as editor of the _Publishers' Weekly_ and of

the _Library Journal_, he has had occasion to keep watch of copyright

progress, and as vice-president of the American (Authors) Copyright League,

he has taken part in the copyright conferences and hearings and in the

drafting of the new code,--will serve to make the present volume of use to

his fellow members of the Authors Club and to like craftsmen, as well as to

publishers and others, and aid in clarifying relations and preventing the

waste and cost of litigation among the coordinating factors in the making

of books and other forms of intellectual property.

{Sidenote: Authorities and acknowledgments}

The present work includes some of the historical material of the

Bowker-Solberg volume of 1886, "Copyright, its law and its literature."

This material has been verified, extended and brought up to date,

especially in the somewhat detailed sketch of the copyright discussions and

legislation resulting in the "international copyright amendment" of 1891

and the code of 1909. The volume is in this respect practically, and in

other respects entirely new. It has had the advantage of the cordial

co-operation of the copyright authorities at Washington, especially the

Librarian of Congress, Herbert Putnam, and the Register of Copyrights,

Thorvald Solberg; also of helpful courtesy from the Canadian Minister of

Agriculture in the recent Laurier administration, Sidney Fisher, and the

Canadian Registrar of Copyrights, P. E. Ritchie, and of Prof. Ernest

Roethlisberger, editor of the _Droit d'Auteur_, and one of the best

authorities on international copyright. This acknowledgment of obligation

is not to be taken as assuming for the work official sanction and

authority, though so far as practicable, it reflects the opinions of the

best authorities. The writer has also consulted freely--but it is hoped

always within the limits of "fair use"--the best law book writers,

especially Drone, Copinger, Colles and Hardy, and MacGillivray, to whom

acknowledgment is made in the several chapters. Acknowledgment is also made

for the courtesies of Sir Frederick Macmillan, G. Herbert Thring, secretary

of the British Society of Authors, and others numerous beyond naming. But

most of all the writer is indebted to the intelligent and capable

helpfulness of Carl L. Jellinghaus, who as private secretary, has been both

right hand and eyes to the writer, and besides participating in the work of

research, is largely responsible for the index and other "equipment" of the

volume.

{Sidenote: Method and form}

American and British codes are not without such defects. Specific subjects

are so interdependent that it has been difficult to make clear lines of

division among the several chapters, and there is necessarily repetition;

it has been the endeavor to concentrate the main discussion in one place,

designated in the index by black face figures, with subordinate references

in other chapters. Ambiguities in the text of this volume often reflect

ambiguities in the laws, particularly of foreign countries. Where acts,

decisions, etc., are quoted in the text or given in the appendix, spelling,

capitalization, punctuation, headings, etc., follow usually the respective

forms, thus involving apparent inconsistencies. Side-headings in the

appendix follow usually the official form, unless shortened to prevent

displacement. Translations of foreign conventions follow usually the

official text of the translation, but have been corrected or conformed in

case of evident error or variance. Citation of cases is confined for the

most part to ruling or recent cases or those of historic importance or

interest. Though it has not been practicable to verify statements from the

comprehensive and accurate statement of the _status_ of copyright

throughout the world is here presented. The present work, originally

planned for publication in 1910, has been held back and alterations and

insertions made to bring the record of legislation to the close of 1911.

For those who wish to keep their copyright knowledge up to date, the

_Publishers' Weekly_ will endeavor to present information as to the English

speaking world, and the monthly issues of the _Droit d'Auteur_ of Berne,

under the editorship of Prof. Roethlisberger, will be found a comprehensive

and adequate guide.

{Sidenote: Advocates of authors' rights}

The preparation of this work brings a recurring sense of the losses which

the copyright cause has suffered during the long campaign for copyright

reform, beginning in the American Copyright League, under the presidency of

James Russell Lowell, and continued under that of Edmund Clarence Stedman,

both of whom have passed over to the majority. Bronson Howard, always

active in the counsels of the League as a vice-president, and the foremost

advocate of dramatic copyright as president of the American Dramatists

Club, failed, like Stedman, to see the fulfillment of his labors in the

passage of the act of 1909. George Parsons Lathrop, Edward Eggleston,

Richard Watson Gilder, "Mark Twain" and other ardent advocates of the

rights of the author, gave large share of enthusiasm and effort to the

cause. Happily the two men who for the last twenty years and more have

labored at the working oar for the Authors League and for the Publishers

League, are still active in the good work, ready to defend the code against

attack and eager to forward every betterment that can be made; to Robert

Underwood Johnson, the successor of the lamented Gilder as editor of the

Century, and to George Haven Putnam, the head of the firm which still bears

the name of his honored father, authors the world over owe in great measure

the progress which has been made in America toward a higher ideal for the

protection of authors' rights.

{Sidenote: Copyright evolution}

It may be noted that while throughout the British Empire English precedent

is naturally followed, the more restrictive American copyright system has

unfortunately influenced legislation in Canada and Newfoundland, and in

Australia. France, open-handed to authors of other countries, has afforded

precedent for the widest international protection and for the international

term; while Spain, with the longest term and most liberal arrangements

otherwise, has been followed largely by Latin American countries. The

International Copyright Union has reached in the Berlin convention almost

the ideal of copyright legislation, and this has been closely followed in

the Buenos Aires convention of the Pan American Union. The world over,

there seems to have been a general evolution of copyright protection from

the rude and imperfect recognition of intellectual property as cognate to

other property, for a term indefinite and in a sense perpetual, almost

impossible of enforcement in the lack of statutory protection and

penalties. Systems of legislation, at first of very limited term and of

restricted scope, have led up to the comprehensive codes giving wide and

definite protection for all classes of intellectual property for a term of

years extending beyond life, with the least possible formalities compatible

with the necessities of legal procedure. Unfortunately in the United States

of America the forward movement which produced the "international copyright

amendment" of 1891 and the code of 1909, conspicuously excellent despite

defects of detail, was in some measure offset by retrogression, as in the

manufacturing restrictions. Until this policy, which still remains a blot

on the 'scutcheon, is abandoned, as the friends of copyright hope may

ultimately be the case, the United States of America cannot enter on even

terms the family of nations and become part of the United States of the

world.

R. R. BOWKER.

December, 1911.

POSTSCRIPT. Since this book has been passing through the press, Cuba has

been added to the countries in reciprocal relations with the United States

with respect to mechanical music by the President's proclamation of

November 27, 1911; Russia has made with France its first copyright treaty,

in conformity with the new Russian code of 1911; and the new British code,

referred to on p. 33, having passed the House of Commons August 17, passed

the House of Lords December 6, and after concurrence by the House of

Commons in minor amendments, mostly verbal, became law by Crown approval,

December 16, 1911, as noted on p. 374. The text of the act in the appendix

follows the official text as it now stands on the English statute books;

the summary (pp. 374-80) describes the act as it became law--and the

earlier references are in accordance therewith, with a few exceptions.

These exceptions mostly concern immaterial changes, made in the House of

Lords. Within January, 1912, Brazil has adopted a new measure for

international copyright, and a treaty has been signed between the United

States and Hungary, the twenty-fifth nation in reciprocal relations with

this country.

CONSPECTUS OF COPYRIGHT BY COUNTRIES Page xi

Under the names of countries are given dates of the basic and latest

amendatory laws. International relations are shown by the name in SMALL

CAPS of the convention city when a country is a party to the International

countries with which there are specific treaties, excepting those within

the union or conventions. The general term of duration is entered, without

specification of special terms for specific classes. Places of registration

and deposit are indicated by R and D when these are not the same. The

number of copies required and in some cases period after publication within

which deposit is required are given in parentheses. Notice of copyright or

of reservation is indicated. Special exceptions or conditions are noted so

far as practicable under remarks. An asterisk indicates that specific

exceptions exist.

The International Copyright Union includes (A) under the Berlin convention,

1908 (a) without reservation Germany, Belgium, Luxemburg, Switzerland,

Spain, Monaco, Liberia, Haiti, Portugal, and (b) with reservation France,

Norway, Tunis, Japan; (B) under the Berne convention, 1886, and the Paris

additional act and interpretative declaration, 1896, Denmark, Italy; (C)

under the Berne convention, 1886, and the Paris additional act, 1896, Great

Britain; (D) under the Berne convention, 1886, and the Paris interpretative

declaration, 1896, Sweden. The Pan American conventions agreed on at Mexico

City, 1902, Rio de Janeiro, 1906, and Buenos Aires, 1910, have not been

ratified except that of Mexico by the United States and by Costa Rica,

Guatemala, Honduras, Nicaragua, Salvador, and doubtfully by Cuba and

Dominican Republic; that of Rio by a few states insufficient to make it

anywhere operative; and that of Buenos Aires by the United States. The

South American convention of Montevideo, 1889, has been accepted by

Argentina, Paraguay and Uruguay, Peru and Bolivia, and has the adherence

(in relation with Argentina and Paraguay only) of Belgium, France, Italy

and Spain. The five Central American states have a mutual convention

through their Washington treaty of peace of 1907.

---------------------------------------------------------------------------

--------------+-----------------+---------+-------------+---------+--------

{Sidenote: North America: English}

|Mex. | | | |

1890-1899 | | |Sec. (2) |Newf.... |and publ.

(U. S.) |_See_ U. S. | | | |

(U. S.) |_See_ U. S. | | | |

1887 | | or 42* |within mo.) | |

1888 | | or 42* |copyright (3 | |

{Sidenote: Europe: English}

I 1844-1886 | | 50*] |D British | |lication

[1911] | | |+ 4 library |[No reg- |[In

1907 | | | | |

{Sidenote: French}

1793-1910 |U. S., Aus-Hung.,| + 50* |of Interior | |

1886 |U. S., Aus., | | | |

1898 |U. S. |+ 50* | | (res. |

1881 |Fr. | life* |Justice (2 | (res. |within

{Sidenote: German}

1901-1910 |U. S., Aus.-Hung.| + 30* | | |

1895, 1907 |Gt. Brit.,* Belg.| + 30* | |(res. |

| | | | mus.) |

1884 |Brit.,*Fr., Ger.,| + 50* | | (res. |

|It. | | | trans. |

{Sidenote: Scandinavian}

1874, 1883 |U. S. | + 30* |Intel. Prop. | (res. |

1865-1911 |U. S., Aus. | + 50* | |(photos, |

| | | | res. |

1905 | | | | |Denmark

1877-1910 |U. S. | + 50* | |(photos, |

| | | | res. |

1897-1908 |U. S., Aus. | + 50* | |(photos, |

| | | | res. |

{Sidenote: Russian}

1911 | | + 50* | |(photos, |

| | | | res. |

| | | | mus.) |

1880 | | + 50* | | |

{Sidenote: Southern}

1867, 1886 |U. S., It., Sp., | + 50* |(2 before | |

|Bra. | |pub.) | |

1882, 1889, |MONTV.* | 40* |(3 within |(res. |40 yrs. on

|Hung., Mont., | | | |5 p. c.

{Sidenote: Europe: Minor States}

1889, 1896 | | 50* | | |

1833-1910 | | |10 days*) | |

etc. (Br.) | |or 42* |mo.) | |

{Sidenote: Balkan States}

1896? | | | | |protection

Servia | | | | |No

1862-1904 |It. | |Instruc. | |

1910 | | 30* |Instruc. (3)*| |

{Sidenote: Asia}

1899, 1910 |U. S.,* China | 30* |of Int. | |

1908 | | | | | Japan

1910 | | 30* |Int. (2) | |

(Br.) | |or 42* |mo.) | |

(U. S.) | | | | |

1847, 1867 | |or 42* |within mo.) |and pub- |

(Br.) | |or 42* |mo.) (4 | |

1901 | |or 42* | | |

{Sidenote: Africa}

1889 | | 50* | | | France

etc (Br.) | |or 42* | | |

1887 | | | | |

| | | | |law

(Br.) |Aus.-Hung., | | | |

1873-1895 | |or 30* |Deeds | |

| | |mo.)* | |

1895-1898 | |or 42* |Sec., D (2 | |

| | |mos.)* | |

| | | | and |

{Sidenote: America, Latin: Mexico Central America}

1871, 1884 | Ecu., Belg., |ity* |Pub. Instruc.|(res. |

1880-1896 |U. S., Sp., Fr. |50* |Pub. Libs. | |

|Guat., Sal., Hon.| |(3)* | |

|Costa R. | |(4)* | |

1904 | It. |ity* |Agric. (6*) |trans.) |

| | |pub.) | |country

1904 | | | | |Colombia

{Sidenote: West Indies}

1879-1909 |U. S., It. | 80* |State (3) | |

1885 | | |Int., (5 | |

1896 | | | | |

{Sidenote: South America}

1891-1901 | |the 1st |within 2 |(res. |

| |pub. | | |

1910 |Belg., Sp., Fr., |10* |(2 within 15 | |

|It. | |or 30 days) | |

1868 | |ite | | |fic law

1833-1874 | | |Lib. (3)* | |

1849, 1860 | |20* |(1) + Dept. | |

1834, 1909 |Fr. | 30* |Pub. Instruc.| |

| | | yr.) | |

1884, 1887 | | 50* |Pub. Educ. |(res. |

| | |mos.)* | |

1886, 1890 | | 80* |Pub. Educ. | |

| | |yr.)* | |

1894, 1897 | |ity | |patent |

{Sidenote: Australasia}

(Br.) 1905 |Aus.-Hung. |or 42* |Copyr. Office| per- |

1842-1903 | | |libr. of Gen.| |

---------------------------------------------------------------------------

CONTENTS Page xv

PART I

NATURE AND DEVELOPMENT OF COPYRIGHT

I. THE NATURE AND ORIGIN OF COPYRIGHT 1-7

2--Property by creation, 3--Property in unpublished works,

4--The question of publication, 5--Inherent right, 5--Statutory

penalties, 6--Statute of Anne, 6--Supersedure of common law

right, 7.

II. THE EARLY HISTORY OF COPYRIGHT 8-23

In classic times, 8--Roman law, 8--Monastic copyists, 8--St.

Columba and Finnian, 9--University protection, 9--Invention of

printing, 10--In Germany, 10--In Italy: Venice, 13--Florence,

17--Control of Church, 17--In France, 17--In England, 19--The

Stationers' Company, 21--Statutory provisions, 22.

III. THE DEVELOPMENT OF STATUTORY COPYRIGHT IN ENGLAND 24-34

The Statute of Anne as foundation, 24--Its relations to common

law, 24--The crucial case, 25--The Judges' opinions, 25--The

Lords' decision, 26--Protests, 26--Supplementary legislation,

26--Georgian period, 27--Legislation under William IV,

28--Victorian act of 1842, 28--Protection of designs,

29--Subsequent acts, 29--Royal Commission report of 1878,

30--Later legislation, 31--International copyright, 31--Musical

32--Design patents, 33--Common law rights, 34.

IV. THE HISTORY OF COPYRIGHT IN THE UNITED STATES 35-41

Constitutional provision, 35--Early state legislation, 35--Act

of 1790, 35--1802-1867, 36--Revised act of 1870, 37--1874-1882,

37--International copyright legislation, 1891, 37--Private

1909, 39--State protection of playright, 39--Trade-Mark act,

40--Common law relations, 40.

PART II

LITERARY AND GENERAL COPYRIGHT

V. SCOPE OF COPYRIGHT: RIGHTS AND EXTENT 42-62

General scope, 42--American provisions, 42--Oral addresses,

42--Dramas, 42--Music, 43--Previous American law,

43--Unpublished works, 43--Common law scope, 44--Common law in

U. S. practice, 44--Statutory limitations, 44--General rights,

45--Inferential rights, 46--Differentiated rights, 46--Court

protection, 46--Division of rights, 46--Analysis of property

rights, 47--Broad interpretation, 48--Limits of protection,

48--Differentiated contracts, 48--Enforcement in limited

grants, 49--Copyright as monopoly, 50--Altered theory of

53--"Privately printed" works, 53--Copying, 53--Vending,

54--Control of sale, 54--Macy cases, 55--Bobbs-Merrill case,

56--Scribner case, 56--English underselling case, 57--Suits

under state law, 57--Translating, 58--"Other version,"

58--Translating term, 58--Oral delivery, 59--"Publicly and for

profit," 59--Material and immaterial property, 60--Schemes not

copyrightable, 61--New British code, 61--Foreign statutes,

62--International provisions, 62.

VI. SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE COPYRIGHTED 63-94

Subject-matter in general, 63--Classification, 63--Prints and

labels excluded, 64--All the writings of an author,

64--Component parts, 64--Compilations, new editions, etc.,

64--Non-copyrightable works, 65--Government use, 65--"Author"

and "writing" definitions, 66--Interpretation by Congress and

courts, 66--Supreme Court decisions, 67--Originality and merit,

68--"Book" definitions, 68--Blank books, 72--Combinations and

arrangements, 73--Advertisements, 73--New editions,

75--Copyright comprehensive, 76--Non-copyrightable parts

excepted, 76--Book illustrations, 77--Translations,

77--Translator's rights, 78--English practice, 79--Translations

in international relations, 79--Foreign translators,

79--Abridgments, 80--Compilations, 81--Collections, 81--Titles,

82--Changed titles, 82--Titles as trade-marks, 83--"Chatterbox"

cases, 84--Projected titles, 85--Projected works not

copyrightable, 86--Immoral works, 86--Periodicals,

87--Definition of periodicals, 87--Periodicals under

manufacturing clause, 88--Periodicals copyrightable by numbers,

88--News, 89--British periodicals, 90--Oral works,

90--Newspaper reports, 91--Lectures in England, 91--Letters,

91--Designs patentable, 93--Foreign practice, 94--International

definition, 94.

VII. OWNERSHIP OF COPYRIGHT: WHO MAY SECURE COPYRIGHT 95-113

Persons named, 95--The author primarily, 95--Claimant's right

to register, 96--Employer as author, 97--Implied ownership,

98--Protection outside of copyright, 98--Work in cyclopaedias,

99--Association of author's name, 100--Added material and

alteration, 100--Separate registration of contributions,

100--Anonymous works, 101--Joint authorship, 101--Corporate

bodies, 102--Posthumous works, 102--Peary cases, 102--Renewal

rights, 104--Assignments, 104--Assignment record,

105--Substitution of name, 105--Witnesses, 106--"Outrights" and

renewal, 106--Proof of proprietorship, 107--Foreign citizens,

107--Earlier provisions, 108--Residence, 108--Intending

citizens, 109--Time of first publication, 109--Non-qualified

authors, 110--Foreign ownership, 111--"Proclaimed" countries,

111--Buenos Aires convention, 113--New British code,

113--Foreign practice, 113.

VIII. DURATION OF COPYRIGHT: TERM AND RENEWAL 114-124

Historic precedent, 114--Previous American practice, 114--Term

in code of 1909, 115--Renewal, 115--Extension of subsisting

copyrights, 116--Assignee of unpublished manuscripts,

116--Extension of subsisting renewals, 117--Publishers'

equities, 117--Estoppel of renewal, 118--Life term and beyond,

118--Unpublished works, 119--Publication as date of copyright,

119--Serial publication, 120--Joint authorship,

120--Forfeiture, 121--Abandonment, 121--In England, 121--New

British code, 122--Perpetual copyright, 123--Other countries,

124--International standard term, 124--Special categories, 124.

IX. FORMALITIES OF COPYRIGHT: PUBLICATION, NOTICE, REGISTRATION

AND DEPOSIT 125-152

General principles, 125--Previous American requirements,

125--Present American basis, 126--Provisions of 1909,

126--Publication, 126--Copyright notice, 127--Previous

statutory form, 128--Exact phraseology required, 128--Name,

129--Date, 129--Accidental omission, 130--Place of notice,

131--One notice sufficient, 131--Separate volumes,

132--Different dates, 133--Extraterritorial notice,

133--Successive editions, 134--False copyright notice, 134--_Ad

interim_ protection, 135--Substitution of name,

135--Registration, 136--Rules and regulations,

136--Application, 136--Certificate, 136--Application

requirements, 137--Illustrations, 138--Periodicals,

138--Application cards, 139--Certificate cards, 140--Fees,

141--Deposit, 142--Fragment not depositable, 143--Typewriting

publication and deposit, 143--Legal provisions, 143--Failure to

deposit, 144--Forfeiture by false affidavit, 144--Works not

reproduced, 144--Second registration, 145--Free transportation

in mail, 145--Loss in mail, 145--Foreign works, 146--_Ad

interim_ deposit, 146--Completion of _ad interim_ copyright,

147--Omission of copyright notice, 148--Books only _ad

interim_, 148--Exact conformity required, 149--Expunging from

registry, 150--British formalities, 150--New British code,

151--Other countries, 151--International provisions, 152.

X. THE AMERICAN MANUFACTURING PROVISIONS 153-161

Manufacturing provision of 1891, 153--Text in 1909 code,

153--Scope and exceptions, 154--Changes, 1891-1909,

154--German-American instances, 155--Dramas excepted,

155--Exception of foreign original texts, 156--Exception of

foreign illustrative subjects, 156--Affidavit requirement,

156--Avoidance of errors, 157--Forfeiture by false affidavit,

158--Exact compliance necessary, 158--Importation questions,

159--Foreign manufacturing provisions, 160--English patent

proviso, 161.

PART III

DRAMATIC, MUSICAL AND ARTISTIC COPYRIGHT

XI. DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT 162-201

Dramatists' and composers' rights, 162--American provisions,

162--Rights assured, 163--Dramatic rights, 163--Musical rights,

164--Excepted performance, 164--Performance "for profit,"

165--Works not reproduced, 166--Copyright notice,

166--Dramatico-musical works protected from mechanical

reproduction, 166--Dramatic and musical works excepted from

manufacturing provisions, 167--British colonial practice,

168--Entry under proper class, 168--Application and

certificates, 168--Right of dramatization, 169--Dramatization

term, 169--Musical arrangements, 169--Transposition, 170--Works

in the public domain, 170--Dramatization right protected,

170--English law and practice, 171--Infringement cases,

172--Substantial quotations, 173--Specific scenes or

situations, 174--What is a dramatic composition, 174--Judge

Blatchford's opinion, 175--Judicial definitions, 175--Moving

pictures, 176--Literary merit not requisite, 177--What is a

dramatico-musical composition, 177--Protection of playright,

178--Protection of unpublished work, 179--Indeterminate

protection, 180--Printing and performance, 180--Specific

English provisions, 182--Publication prior to performance,

183--British international protection, 184--What is public

performance, 185--Manuscript rights, 186--Unpublished

orchestral score, 187--Dramatic work by employee,

188--Copyright term, 188--Registration, 189--Assignment,

189--Parody, 190--Infringement by single situation,

191--Protection of title, 191--Names of characters,

192--Persons liable for infringement, 193--Protection against

"fly by night" companies, 194--State legislation, 194--Remedies

under present law, 195--Musical protection in England,

195--Acts of 1902-1906, 196--Playright in other countries,

197--International provisions, 197--Foreign protection of

arrangements, 197--International definitions, 198--National

formalities, 199--Specific reservations and conditions,

200--Pan American Union, 201.

XII. MECHANICAL MUSIC PROVISIONS 202-221

"Canned music" contest, 202--Mechanical music provisos,

202--Compulsory license, 203--Damages, 203--Public performance,

204--The compromise result, 204--Judicial construction,

205--Punishment of infringement, 206--Notice of intention to

use, 206--Constitutional question, 207--English law, 208--Berne

situation, 1886, 209--Paris, 1896, 209--Berlin provision, 1908,

209--German precedents, 210--Law of 1910, 211--Germany and the

United States, 212--French precedents, 212--Belgian precedents,

213--Italian precedents, 213--Other countries, 214--Argument

for inclusion, 214--Inscribed writings, 215--Direct

sound-writings, 216--Music transmissal, 216--Music notation,

217--The law prior to 1909, 218--Manuscript and copies,

218--Protection of the inventor, 219--The counter argument,

220--Complete protection, 221.

XIII. ARTISTIC COPYRIGHT 222-250

Threefold value in art works, 222--American provisions,

223--Copyright Office classification definitions, 223--The

question of exhibition, 224--Protection of unpublished work,

225--Copyright notice, 225--Deposit, 226--Summary of

requirements, 227--Material and immaterial properties distinct,

228--Manufacturing clause, 228--German post cards,

229--Artistic merit, unimportant, 229--Application forms,

229--Certificates, 230--Term in unpublished work, 230--Date not

required, 230--Re-copyright objectionable, 231--Exhibition

right transfer, 231--Early English decision, 232--The

Werckmeister leading case, 233--Unrestricted exhibition

hazardous, 234--Reservation on sale, 234--Publication

construed, 234--Danger of forfeiture, 235--Limited use and

license, 236--Character, not method of use, 237--Illustration,

237--Description of artistic work, 238--Portraits, 238--Right

of employer, 239--Photographs, 240--_Tableaux vivants_ and

moving pictures, 241--Architectural works, 242--Copy of a copy,

243--Alterations, 243, 244--Remedies, 245--Artistic copyright

term, 245--British practice, 246--Sculpture provisions,

247--Engraving provisions, 247--New British code, 247--Foreign

countries, 248--Berne convention, 1886, 248--Paris declaration,

1896, 249--Berlin convention, 1908, 250--Exhibition not

publication, 250--Pan American Union, 250.

PART IV

XIV. INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE" AND "UNFAIR

COMPETITION" 251-264

Piracy, 251--Test of piracy, 251--Infringement in specific

meaning, 252--Questions of fact and intent, 253--"Fair use,"

253--Principle of infringement, 254--Infringement by indirect

copying, 254--Exceptions from infringement, 255--Infringement

by abridgment and compilation, 255--Abridged compilations,

256--Separation of infringing parts, 256--Law digests,

257--Proof from common errors, 257--Infringement in part,

258--No infringement of piracies or frauds, 258--Quotation,

259--Private use, 259--"Unfair competition," 260--Deceptive

intent, 260--"Chatterbox" cases, 261--Encyclopaedia Britannica

cases, 261--Webster Dictionary cases, 261--"Old Sleuth" cases,

262--Other title decisions, 262--Rebound copies, 263--Kipling

case, 263--Burlesqued title, 264--Drummond case, 264--New

British code, 264.

XV. REMEDIES AND PROCEDURE 265-277

Protection and procedure, 265--Injunction, 265--Damages,

265--One suit sufficing, 266--Deposit of infringing articles,

266--Remedies specified, 267--Impounding, 268--Supreme court

rules, 268--Court jurisdiction, 268--Limitation, 269--Text of

procedure provisions, 270--Proceedings united in one action,

270--Jurisdiction, 270--Injunction provisions, 270--Appeal,

271--No criminal proceedings, after three years, 271--Strict

compliance requisite, 271--Damage not penalty, 272--Other

procedure decisions, 273--Preventive action, 274--Party in

suit, 274--Willful case, 275--Penal provisions, 275--False

notice of copyright, 276--Allowance of costs, 276--New British

code, 277.

XVI. IMPORTATION OF COPYRIGHTED WORKS 278-296

278--General prohibitions, 279--Exceptions permitted, 279--Text

provisions, 280--Prohibition of piratical copies,

280--Permitted importations, 280--Library importations,

281--Seizure, 282--Return of importations, 282--Rules against

unlawful importation, 282--Supersedure of previous provisions,

283--Manufacturing clause affects earlier copyrights,

283--Importation of foreign texts, 284--Printing within

country, 285--Innocent importation, 286--Books not claiming

286--Rebinding abroad, 287--Importation of non-copyright

translation, 288--Books dutiable, 288--Books on free list,

289--Library free importation, 290--Copyrights and the free

list, 291--The duty on books, 291--British prohibition of

importation, 292--Foreign reprints, 293--Divided market,

293--New British code, 293--Canadian practice, 294--Australian

provision, 295--Foreign practice, 295--International practice,

296.

XVII. COPYRIGHT OFFICE: METHODS AND PRACTICE 297-310

History of Copyright Office, 297--Routine of registration,

297--Treatment of deposits, 298--Destruction of useless

material, 299--Register of Copyrights, 299--Catalogues and

indexes, 300--Entry cards, 301--Text provisions, 302--Copyright

records, 302--Register and assistant register, 302--Deposit and

report of fees, 302--Bond, 303--Annual report, 303--Seal,

303--Rules, 303--Record books, 303--Certificate, 303--Receipt

for deposits, 304--Catalogue and index provision,

304--Distribution and subscriptions, 305--Records open to

inspection, 305--Preservation of deposits, 305--Disposal of

deposits, 306--Fees, 307--Only one registration required,

307--Present organization, 308--Efficiency of methods,

308--Registration, 1909-1910, 309--Certificates for court use,

309--Searches, 309--Patent Office registry for labels,

309--Foreign practice, 310.

PART V

INTERNATIONAL AND FOREIGN COPYRIGHT

XVIII. INTERNATIONAL COPYRIGHT CONVENTIONS AND ARRANGEMENTS 311-340

International protection of property, 311--Early copyright

protection, 311--English protection, 311--Effect of Berne

convention, 313--International literary congresses,

314--Fundamental proposition, 314--Preliminary official

conference, 1883, 314--Propositions of 1883, 315--First

official conference, 1884, 316--Second official conference,

1885, 317--Third official conference, 1886, 318--Berne

convention, 1886, 318--Authors and terms, 318--"Literary and

artistic works" defined, 318--Performing rights, 319--Other

provisions, 319--Final protocol, 320--Ratification in 1887,

320--Paris conference, 1896, 321--Paris Additional Act,

321--Paris Interpretative Declaration, 322--Ratification in

1897, 322--Berlin conference, 1908, 323--United States'

position, 324--Welcome of non-unionist countries, 325--Death of

Sir Henry Bergne, 325--Berlin convention, 1908, 326--"Literary

and artistic works" defined, 326--Authors' rights,

326--"Country of origin," 327--Broadened international

protection, 327--Term, 328--Performing rights, 328--Other

provisions, 329--National powers reserved, 329--Organization

provisions, 329--Ratification in 1910, 330--Official organ,

330--Montevideo congress, 1889, 331--Pan American conferences,

331--Mexico City conference, 1902, 332--Mexico convention,

1902, 332--Indispensable condition, 333--Special provisions,

333--Ratification, 334--Rio de Janeiro conference, 1906,

334--Rio provisions, 335--Ratification, 336--Buenos Aires

conference and convention, 1910, 336--Attorney General's

opinion on ratification, 337--Relation with importation

provisions, 338--United States international relations,

339--"Proclaimed" countries, 339--Mechanical music reciprocity,

340.

XIX. THE INTERNATIONAL COPYRIGHT MOVEMENT IN AMERICA 341-372

Initial endeavor in America, 1837, 341--The British address,

341--Henry Clay report, 1837, 344--Prophecy of world union,

344--Clay bills, 1837-42, 346--Palmerston invitation, 1838,

346--Efforts, 1840-48, 346--Everett treaty, 1853, 347--Morris

bills, 1858-60, 348--International Copyright Association, 1868,

348--Baldwin bill and report, 1868, 348--Clarendon treaty,

1870, 349--Cox bill and resolution, 1871, 349--The Appleton

proposal, 1872, 350--Philadelphia protest, 1872, 351--The

Bristed proposal, 1872, 351--Kelley resolution, 1872,

352--Congressional hearings, 352--Beck-Sherman bill, 1872,

352--Morrill report, 1873, 353--Banning Bill, 1874, 353--The

Harper proposal and draft, 1878, 353--Granville negotiations,

1880, 355--Robinson and Collins bills, 1882-83, 356--American

publishers' sentiment, 357--Hawley bill, 1885, 358--Chace bill,

1886, 358--Congressional hearings, 1886, 359--Mr. Lowell's

epigram, 359--President Cleveland's second message, 1886,

360--Campaign of 1887, 360--Senate passage of Chace bill, 1888,

361,--Bryce bill, 1888, 361--President Harrison's message,

1889, 361--Simonds bill and report, 1890, 362--Senate debate,

1891, 363--Act of March 4, 1891, 363--Review of the publishing

situation, 364--Lack of unified policy, 365--Compromise of

1891, 365--Need of general revision, 366--_Ad interim_

367--President Roosevelt's message, 1905, 368--Congressional

hearings, 1906-08, 369--Kittredge-Currier reports, 1907,

369--Smoot-Currier Kittredge-Barchfeld bills, 1907-08,

370--Washburn, Sulzer, McCall, Currier bills, 1908, 370--Fourth

Congressional hearing, 1909, 371--Act of March 4, 1909,

371--Hopes of future progress, 372.

XX. COPYRIGHT THROUGHOUT THE BRITISH EMPIRE 373-397

English and American systems, 373--First publication and

residence, 373--Variations in copyright terms, 374--New British

code, 374--Scope and extent, 375--Publication, 376--Definition

of copyright, 376--Infringement, 376--Term, 377--Ownership,

377--Deposit copies, 378--Importation, 378--Remedies,

378--General relations, 379--Acts repealed, 379--Changes from

original bill, 379--Isle of Man, 380--Channel Islands,

381--International relations, 381--Colonial relations,

381--Local legislation, 382--Canadian copyright history,

383--Dominion of Canada: early acts, 383--Acts of 1875,

384--License acts disallowed, 385--Fisher Act, 1900, 385--Minor

acts, 386--Short form of notice, 386--Proposed Canadian

388--Requisites for domestic copyright, 388--Imperial and local

protection, 388--Additional local protection, 389--Application

for copyright, 389--Newfoundland, 390--British West Indies,

etc., 391--Australian code of 1905, 391--General provisions,

392--Dramatic and musical works, 393--Performing right,

393--Registration and license, 394--New Zealand,

394--Australasia otherwise, 395--British India, 395--South

Africa, 396--West coast colonies, 397--Mediterranean islands,

397.

XXI. COPYRIGHT IN OTHER COUNTRIES 398-429

France, 398--Belgium, 400--Luxemburg, 400--Holland,

401--Germany, 402--Austria-Hungary, 405--Switzerland,

406--Scandinavian countries, 407--Russia, 409--Finland,

409--Spain, 410--Portugal, 411--Italy, 412--San Marino,

413--Monaco, 413--Greece, 414--Montenegro, 414--Balkan states,

414--Turkey, 415--Japan, 415--Korea, 416--China, 417--Siam,

417--Asia otherwise, 418--Tunis, etc., 418--Egypt,

418--Liberia, 419--Africa otherwise, 419--Latin America,

419--Mexico, 420--Central American states, 421--Interstate and

international relations, 422--Panama, 423--Cuba, 423--Haiti,

424--Dominican Republic, 424--West Indian colonies,

425--Brazil, 425--Argentina, 425--Paraguay and Uruguay,

426--Chile, 427--Peru, 427--Bolivia, 427--Ecuador,

428--Colombia, 429--Venezuela, 429.

PART VI

BUSINESS RELATIONS AND LITERATURE

XXII. BUSINESS RELATIONS OF COPYRIGHT: AUTHOR AND PUBLISHER 430-452

Copyrights in business relations, 430--German publishing law of

1901, 430--The publisher as merchant, 434--"Outright" transfer,

434--"Joint adventure," 435--Risk and profit, 435--Long price

and "net" price, 436--Equities, 436--The literary agent,

436--Usual American contract, 437--Publishers' obligations,

437--Reversion of contract, 438--Scope of contract, 438--Other

works of author, 439--Standard contract, 439--Serial rights,

439--Republication of periodical articles, 440--Foreign

markets, 440--Contract to do work, 440--Contract not to write,

441--Implied obligations, 442--Contract personal and mutual,

442--Author's transfer to other publishers, 445--Proprietary

name, 445--Copies remaining unsold, 446--Renewal term,

447--License not assignment, 447--Author's and publisher's

profits, 447--The publisher's share, 448--"Author's editions,"

449--Printer's lien, 449--Compulsory license system,

449--License payments, 450--Saving through single publisher,

451--Copyrights in bankruptcy, 451--Copyrights in taxation,

452.

XXIII. THE LITERATURE OF COPYRIGHT 453-462

Bibliographical materials, 453--Early history, 453--Early

American contributions, 454--Later American pamphleteers,

454--American treatises, 455--Copyright Office publications,

455--Labor report, 456--English contributions about 1840,

456--Later English contributions, 457--English legal treatises,

457--Birrell's lectures, 458--MacGillivray's works,

458--English special treatises, 459--Parliamentary and

Commission reports, 459--Cyclopaedias and digests, 460--French

works, 460--German works, 460--Italian works, 461--Spanish

compendium, 461--International compilations, 462.

APPENDIX

I. UNITED STATES OF AMERICA: COPYRIGHT PROVISIONS 465-516

1. United States Copyright Code of 1909, 465.

2. President's Proclamations, 489.

3. United States Supreme Court Rules, 491.

4. United States Copyright Office Regulations, 495.

Application for copyright, with affidavit form, 511.

5. U. S. Treasury and Post Office Regulations, 513.

II. BRITISH EMPIRE: COPYRIGHT PROVISIONS 517-602

6. British Copyright Act, 1911, 517.

6_a_. Fine Arts Copyright Act, 1862, 548.

6_b_. Musical (Summary Proceedings) Copyright Act, 1902, 550.

6_c_. Musical Copyright Act, 1906, 552.

7. Canadian Copyright Measure, 1911, 555.

8. Australian Copyright Act, 1905, 580.

III. INTERNATIONAL COPYRIGHT UNION: CONVENTIONS 603-632

9. Berne-Paris Conventions, 1886, 1896, 603.

10. Berlin Convention, 1908, 603.

IV. PAN AMERICAN UNION: CONVENTIONS 633-652

11. Montevideo Convention, 1889, 633.

12. Mexico City Convention, 1902, 637.

13. Rio de Janeiro Convention, 1906, 642.

14. Buenos Aires Convention, 1910, 649.

CHRONOLOGICAL TABLE OF LAWS AND CASES, ENGLISH AND AMERICAN 653-675

INDEX 677-709

CONSPECTUS OF COPYRIGHT BY COUNTRIES _precedes_ CONTENTS

ITS HISTORY AND ITS LAW

THE NATURE AND ORIGIN OF COPYRIGHT

{Sidenote: Copyright, meaning}

to copy, to make plenty. In its specific application it means the right

to multiply copies of those products of the human brain known as

literature and art.

There is another legal sense of the word "copyright" much emphasized by

several English justices. Through the low Latin use of the word _copia_,

our word "copy" has a secondary and reversed meaning, as the pattern to

be copied or made plenty, in which sense the schoolboy copies from the

"copy" set in his copy-book, and the modern printer calls for the

author's "copy."

{Sidenote: Its two senses}

the original work or a duplication of it), as well as the right to make

copies, which by no means goes with the work or any duplicate of it.

Said Lord St. Leonards in the case of Jefferys v. Boosey in 1854: "When

we are talking of the right of an author we must distinguish between the

mere right to his manuscript, and to any copy which he may choose to

make of it, as his property, just like any other personal chattel, and

the right to multiply copies to the exclusion of every other person.

Nothing can be more distinct than these two things. The common law does

give a man who has composed a work a right to that composition, just as

he has a right to any other part of his personal property; but the

question of the right of excluding all the world from copying, and of

himself claiming the exclusive right of forever copying his own

composition after he has published it to the world, is a totally

different thing." Baron Parke, in the same case, pointed out expressly

these two different legal senses of the word copyright, the right _in_

copy, a right of possession, always fully protected by the common law,

and the right _to_ copy, a right of multiplication, which alone has been

the subject of special statutory protection.

{Sidenote: Blackstone}

Blackstone in his Commentaries of 1767, in which the word copyright

seems to have been first used, lays down the fundamental principles of

powers, has produced an original work, he seems to have clearly a right

to dispose of that identical work as he pleases, and any attempt to vary

the disposition he has made of it appears to be an invasion of that

right. Now the identity of a literary composition consists entirely in

the sentiment and the language; the same conceptions, clothed in the

same words, must necessarily be the same composition; and whatever

method be taken of exhibiting that composition to the ear or the eye of

another, by recital, by writing, or by printing, in any number of

copies, or at any period of time, it is always the identical work of the

author which is so exhibited; and no other man (it hath been thought)

can have a right to exhibit it, especially for profit, without the

author's consent. This consent may, perhaps, be tacitly given to all

mankind, when an author suffers his work to be published by another

hand, without any claim or reserve of right, and without stamping on it

any marks of ownership; it being then a present to the public, like

building a church or bridge, or laying out a new highway."

{Sidenote: Property by creation}

There is nothing which may more rightfully be called property than the

creation of the individual brain. For property (from the Latin

_proprius_, own) means a man's very _own_, and there is nothing more his

own than the thought, created, made out of no material thing (unless the

nerve-food which the brain consumes in the act of thinking be so

counted), which uses material things only for its record or

manifestation. The best proof of _own_-ership is that if this individual

man or woman had not thought this individual thought, realized in

writing or in music or in marble, it would not exist. Or if the

individual thinking it had put it aside without such record, it would

not, in any practical sense, exist. We cannot know what "might have

beens" of untold value have been lost to the world where thinkers, such

as inventors, have had no inducement or opportunity thus to materialize

their thoughts.

{Sidenote: Are thoughts created?}

It is sometimes said, as a bar to this idea of property, that no thought

is new--that every thinker is dependent upon the gifts of nature and the

thoughts of other thinkers before him, as every tiller of the soil is

dependent upon the land as given by nature and improved by the men who

have toiled and tilled before him,--a view of which Henry C. Carey has

been the chief exponent in this country. But there is no real

analogy--aside from the question whether the denial of individual

property in land would not be setting back the hands of progress. If

Farmer Jones does not raise potatoes from a piece of land, Farmer Smith

can; but Shakespeare cannot write "Paradise lost" nor Milton "Much ado,"

though before both Dante dreamed and Boccaccio told his tales. It was

because of Milton and Shakespeare writing, not because of Dante and

Boccaccio who had written, that these immortal works are treasures of

the English tongue. It was the very self of each, _in propria persona_,

that gave these form and worth, though they used words that had come

down from generations as the common heritage of English-speaking men.

Property in a stream of water, as has been pointed out, is not in the

atoms of the water but in the flow of the stream.

{Sidenote: Property in unpublished works}

Property right in unpublished works has never been effectively

questioned--a fact which in itself confirms the view that intellectual

property is a natural inherent right. The author has "supreme control"

over an unpublished work, and his manuscript cannot be utilized by

creditors as assets without his consent. "If he lends a copy to

another," says Baron Parke, "his right is not gone; if he sends it to

another under an implied undertaking that he is not to part with it or

publish it, he has a right to enforce that undertaking." The receiver of

a letter, to whom the paper containing the writing has undoubtedly been

given, has no right to publish or otherwise use the letter without the

writer's consent. The theory that by permitting copies to be made, an

author dedicates his writing to the public, as an owner of land

dedicates a road to the public by permitting public use of it for

twenty-one years, overlooks the fact that in so doing the author only

conveys to each holder of his book the right to individual use, and not

the right to multiply copies, as though the landowner should not give

but sell permission to individuals to pass over his road, without any

permission to them to sell tickets for the same privilege to other

people. The owner of a right does not forfeit a right by selling a

privilege.

{Sidenote: The question of publication}

It is at the moment of publication that the undisputed possessory right

passes over into the much disputed right to multiply copies, and that

the vexed question of the true theory of copyright property arises. The

broad view of literary property holds that the one kind of copyright is

involved in the other. The right to have is the right to use. An author

cannot use--that is, get beneficial results from--his work, without

offering copies for sale. He would be otherwise like the owner of a loaf

of bread who was told that the bread was his until he wanted to eat it.

That sale would seem to contain "an implied undertaking" that the buyer

has liberty to use his copy, but not to multiply it. Peculiarly in this

kind of property the right of ownership consists in the right to prevent

use of one's property by others without the owner's consent. The right

of exclusion seems to be indeed a part of ownership. In the case of land

the owner is entitled to prevent trespass, to the extent of a shot-gun,

and in the same way the law recognizes the right to use violence, even

to the extreme, in preventing others from possession of one's own

property of any kind. The owner of a literary property has, however, no

physical means of defence or redress; the very act of publication by

which he gets a market for his productions opens him to the danger of

wider multiplication and publication without his consent. There is,

therefore, no kind of property which is so dependent on the help of the

law for the protection of the real owner.

{Sidenote: Inherent right}

The inherent right of authors is a right at what is called common

law--that is, natural or customary law. The common law, says Kent,

"includes those principles, usages, and rules of action applicable to

the government and security of person and property which do not rest for

their authority upon any express and positive declaration of the will of

the legislature." "The common law or _lex non scripta_," says

Blackstone, "depends upon its having been used time out of mind; or, in

the solemnity of our legal phrase, time whereof the memory of man

runneth not to the contrary." So far as concerns the undisputed rights

before publication, the copyright laws are auxiliary merely to common

law. Rights exist before remedies; remedies are merely invented to

enforce rights. "The seeking for the law of the right of property in the

law of procedure relating to the remedies," says Copinger in his

standard English work on "The law of copyright," "is a mistake similar

to supposing that the mark on the ear of an animal is the cause, instead

of the consequence, of property therein."

{Sidenote: Statutory penalties}

After the invention of printing it became evident that new methods of

procedure must be devised to enforce common law rights. Copyright

became, therefore, the subject of statute law, by the passage of laws

imposing penalties for a theft which, without such laws, could not be

punished.

{Sidenote: Statute of Anne}

{Sidenote: Supersedure of common law right}

These laws, covering naturally only the country of the author, and

specifying a time during which the penalties could be enforced, and

providing means of registration by which authors could register their

property rights, as the title to a house is registered when it is sold,

had an unexpected result. The statute of Anne, which is the foundation

of present English copyright law, intended to protect authors' rights by

providing penalties against their violation, had the effect of limiting

those rights. It was doubtless the intention of those who framed the

statute of Anne to establish, for the benefit of authors, specific means

of redress. Overlooking apparently the fact that law and equity, as their

principles were then established, enabled authors to use the same means of

redress, so far as they held good, which persons suffering wrongs as to

other property had, the law was so drawn that in 1774 the English House of

Lords (against, however, the weight of one half of English judicial

opinion) decided that, instead of giving additional sanction to a formerly

existing right, the statute of Anne had substituted a new and lesser right

to the exclusion of what the majority of English judges held to have been

an old and greater right. Literary and like property to this extent lost

the character of copy-_right_, and became the subject of copy-_privilege_,

depending on legal enactment for the security of the private owner.

American courts, wont to follow English precedent, have rather taken for

granted this view of the law of literary property, and our Constitution,

in authorizing Congress to secure "for limited times to authors and

inventors the exclusive right to their respective writings and

discoveries," was evidently drawn from the same point of view, though it

does not in itself deny or withdraw the natural rights of the author at

common law.

THE EARLY HISTORY OF COPYRIGHT

{Sidenote: In classic times}

Our traditions of the blind Homer, singing his Iliad in the

multitudinous places of his protean nativity, do not vouchsafe us any

information as to the _status_ of authors in his day. There seems indeed

to be no indication of author's rights or literary property in Greek or

earlier literatures. But there is mention in Roman literature of the

sale of playright by the dramatic authors, as Terence; and Rome had

booksellers who sold copies of poems written out by slaves, and who seem

to have been protected by some kind of "courtesy of the trade," since

Martial names certain booksellers who had specific poems of his for

sale. Horace complains that the Sosius brothers, his publishers, got

gold while he got only fame--but this may have been a classic "author's

grumble." Cicero in his letters indicates that there was some notion of

literary property, and it is probable that some kind of payment was made

to authors.

{Sidenote: Roman law}

The Roman jurist Gaius, probably of the second century, held that where

an artist had painted upon a _tabula_, his was the superior right. And

this opinion was adopted by Tribonian, chief editor of the code of

Justinian, in the sixth century, and was applied in a modern question in

respect to John Leech's drawings upon wood.

{Sidenote: Monastic copyists}

{Sidenote: St. Columba and Finnian}

In the early Christian centuries, the monasteries became the seats of

learning, and the _scriptorium_ or writing room, in connection with the

_librarium_ or _armarium_,--the armory in which the weapons of the faith

were kept,--was the work-shop of the monkish copyists, sometimes working

as a publishing staff under the direction of the _librarius_ or

_armarius_ as chief scribe. The first record of a copyright case is that

of Finnian _v_. Columba in 567, chronicled by Adamnan fifty years later

and cited by Montalembert in "The monks of the West." St. Columba, in

his pre-saintly days, surreptitiously made a copy of a psalter in

possession of his teacher Finnian, and the copy was reclaimed, so the

tradition relates, under the decision of King Dermott, in the Halls of

Tara: "To every cow her calf." The authenticity of the tradition is

questioned by other writers, but the phrase gives the pith of the common

law doctrine of literary property and indicates that in those early

centuries there was a sense of copyright. Monks from other monasteries

came to a noted _scriptorium_ where a specially authentic or valuable

manuscript could be copied, and the privilege of copying sometimes

became the basis of an exchange of copies or of a commercial charge.

Finally different texts of the same work were compared to obtain a

certain or standard text, and the multiplication of such copies became

the basis of a publishing and bookselling trade, in secular as well as

sacerdotal hands, the development of which is traced in detail by George

Haven Putnam in "Books and their makers in the Middle Ages."

{Sidenote: University protection}

This development is illustrated in the statutes of 1223 of the

University of Paris, providing that the "booksellers of the University"

should produce duplicate copies of the texts authorized for the use of

the University, and there is indication that payment was made by the

University to scholars for the annotation and proof-reading of such

texts. In fact, there existed in France in those days a kind of guild of

_libraires jures_ or legalized booksellers, under regulation of the

University, as a body of publishers and writers having jurisdiction over

the copying and censorship of manuscripts. "Letters of patent" of

Charles V, 1368, specified fourteen _libraires_ and eleven _ecrivains_

as registered in Paris, and four chief _libraires_ had jurisdiction over

the calling of the _librarius_ and the _stationarius_. The certificate

of the correctness of a copy, and perhaps of the right to copy or sell

it, may be considered the primitive form of copyright certificate.

{Sidenote: Invention of printing}

The invention of printing, prior to 1450, made protection of literary

property a question of rapidly increasing importance. The new art

raised, of course, many new questions wherever the guardians of the law

were set to their chronic task of applying old ideas of right to new

conditions. The earliest copyright certificate, if it may be so called,

in a printed book was that in the reissue of the tractate of Peter

Nigrus printed in 1475, at Esslingen, in which the Bishop of Ratisbon

certified the correctness of the copy and his approval. At first

"privileges" were granted chiefly to printers, for the reproduction of

classic or patristic works, but possibly in some cases as the

representatives of living writers; and there are early instances of

direct grants to authors, the earliest known being in 1486 in Venice to

Sabellico.

{Sidenote: In Germany}

In Germany, the cradle of the art of printing, whence come the earliest

_incunabula_ or cradle-books, printing privileges were developed some

decades later than in Italy. Koberger, the early Nuremberg printer,

whose imprint dates back to 1473, relied rather on the "courtesy of the

trade," and indeed made an agreement in 1495 with Kessler of Basel to

respect each other's rights. Yet a suit brought in 1480 by Schoeffer, who

with Fust had established the first publishing and bookselling business,

brought in connection with Fust's heirs against Inkus of Frankfort for

the infringement of property rights in certain books, and the issue of a

preliminary injunction by a court at Basel, indicated some definite

legal _status_.

The first recorded privilege in Germany was issued by the imperial Aulic

Council in 1501, to the Rhenish Celtic Sodalitas for the printing of

dramas of the nun-poet, Hroswitha, who had been dead for 600 years, as

prepared by Celtes of Nuremberg. The imperial privilege covered only the

imperial domain, and Celtes in the same year obtained a similar

privilege from the magistracy of Frankfort, then the seat of the

book-fair, organized there about 1500, afterwards superseded by that at

Leipzig. Later, imperial privileges were issued by the Imperial

Chancellor in the name of the Emperor, as one in 1510 to the printer

Johann Schott of the "_Lectura aurea_." In 1512 Maximilian I granted to

the historiographer Johann Stab in Lintz a privilege covering "all

works" which he "might cause to be printed," under which he issued

licenses on particular books for ten years or less. This grant, however,

some authorities consider not a privilege or copyright, but an

authorization to license, possibly similar to that which had been

granted in 1455 by Frederick III and confirmed later by Maximilian I to

Dr. Jacob Oessler at Strasburg, perhaps the earliest centre of printing

and bookselling, as imperial supervisor of literature and superintendent

of printing. In 1512 also, copies or imitations or engravings by Albert

Duerer, with forged signature, were ordered confiscated by the

magistrates of Nuremberg, though perhaps on grounds of fraud rather than

of copyright. But in 1528 Duerer's widow obtained from the Nuremberg

authorities exclusive privilege for his works, and in that year the

magistrates went so far in protecting Duerer's "Proportion" as to

restrain another work of the same title and subject, presumably though

mistakenly inferred to be an adaptation or imitation, until after the

completion and sale of the original work. In 1532 reengravings of some

of Duerer's works were restrained, and when a Latin edition of his

"Perspective," printed in Paris, found its way to Nuremberg, the

magistrates called the booksellers together, warned them against keeping

or selling the unauthorized edition, and sent letters to the magistracy

of Strasburg, Frankfort, Leipzig and Antwerp, requesting similar action.

Luther in his reforming zeal was the first protestant against authors'

wrongs, and in a letter of 1528 complained that "there are many now

busying themselves with the spoiling of books through misprinting them,"

and pleaded for legislation to protect literary producers. In 1531 the

city council of Basel enjoined all booksellers from reprinting the books

of each other for three years from publication under penalty of one

hundred gulden, which illustrates the nature of local legislation,

privileging printers as well as other guilds within a city. The

protection was usually for short terms and sometimes covered the subject

as well as the book, as indicated in the Duerer case.

The coordinate jurisdiction of imperial and local authority continued

into the seventeenth century, and besides a special protection of

official publications, including church texts and school books, there

developed a differentiation between privileged books and protected

authors. The imperial city of Frankfort in 1660 passed an ordinance for

the protection of "_buecher_" and "_autores_" and an imperial patent of

1685 made the curious distinction between "privileged" and

"unprivileged" works, which Puetter, reputed the German apostle of the

modern theory of property in literary productions, writing in 1764,

explains as meaning respectively "non-individual" and "individual"

(_eigenthuemlich_) works, the former those issued under printers'

privileges, the latter the works of contemporary authors, copyrightable

in our modern sense. At the close of the seventeenth century, the

book-fair at Leipzig began to assume dominating importance, and the

privileges from the Commission of the Elector of Saxony became more

authoritative, perhaps, than the imperial privileges issued from

Frankfort.

{Sidenote: In Italy: Venice}

Venice, among whose chief glories were to be the master printers Aldus,

was the first and foremost of the Italian states to encourage the new

art. The first privilege granted by her Senate, in 1469, indeed

ante-dated the first in Germany by thirty-two years, the first in France

by thirty-four years, and the first in England by forty-nine years. This

was to John of Speyer, a German printer, for a monopoly for printing in

Venice for five years, with prohibition of importation of works printed

elsewhere, which he did not live to enjoy. The first known author's

to the Republic, of the sole right to publish or authorize the

publication of his "Decade of Venetian affairs," not limited in time,

with a penalty of five hundred ducats for infringement. In 1491 the

Senate gave to the publicist Peter of Ravenna and the publisher of his

choice the sole right, without mention of term, to print and sell his

"Phoenix," usually cited as the first instance of copyright. In 1493 one

Barbaro was granted a privilege for ten years in the work of his

deceased brother, and in the same year an editor's copyright was granted

to Joannes Nigro for his edition of "Haliabas," his application being

accompanied by a certificate from learned doctors of Padua of its value

for the community, and a publisher's copyright to Benaliis on

Giustiniani's "Origin of the city of Venice," both apparently without

term. In 1494 a privilege to Codeca contained the condition of fair

price, and another privilege required publication within a year or at

the rate of a folio a day. In 1496 Aldus himself was given the privilege

for twenty years of printing any Greek texts, and in 1501, another for

ten years of printing in cursive or italic characters, an invention of

his own modeled on the handwriting of Boccaccio, a _quasi_ patent right;

and rights for other languages were granted to other printers.

From 1505 renewals were granted for good cause, as in 1508 to Crasso for

his edition of the works of Polifilo, because the wars had prevented due

return. The privilege dated sometimes from application, sometimes from

publication, and varied in term from one year up, averaging perhaps ten

years at the beginning and twenty years toward the close of the

sixteenth century. Many of the privileges were conditioned on printing

within Venice. Copyright to authors became frequent, as in 1515 on his

"Orlando" for his lifetime, to Ariosto, on whose poems an extra term for

ten years was granted, in 1535, to his heirs. In 1521 Castellazzo

obtained a copyright for his engravings illustrating the Pentateuch and

for others which he had in plan; and many musical works were also

copyrighted.

It will be seen that before or early in the sixteenth century most of

the copyright conditions of later legislation, even in the American code

of 1909, had been prophesied in Venice. But the privileges had become so

complicated and perplexing that in 1517 the Venetian Senate abolished

all printing privileges previously granted and decreed that privileges

should thereafter be granted only by two-thirds vote and for a new work

(_opus novum_) "never published before," or works hitherto unprivileged.

This attempt at reform proved inadequate and indefinite, and in 1533 the

first real copyright code was decreed, under which printing was required

within Venice, and publication within a year--later modified for larger

works to a folio a day. No publisher could apply twice for the same

Bureau of Arts and Industries. Under the restriction of competition,

Venetian printers, once the best in the world, fell into "the ruinous

and disgraceful practice," according to a decree of 1537, "for the sake

of gain" of using "vile paper that would not hold the ink" or permit

marginal notes; and the use of good paper that could be written upon

without blotting was required, except for works priced under 10 soldi,

on penalty of forfeiture of copyright and a fine of 100 ducats. Under

the earlier privileges publishers had printed books without consent of

the authors or against their will, but in 1545 it was decreed that no

author or his representatives had been submitted to the Rifformatori,

the commission from the University of Padua, appointed the year before

as censors upon non-theological works, not covered by the ecclesiastical

censors.

A decree in 1548 established a guild of printers and publishers,

antedating the charter granted by Queen Mary to the Stationers' Company

in London, though later than the organization of the book-fair of

Frankfort and of the _libraires jures_ in France; and its regulations,

aiding the censorship, incidentally defined literary property and

protected copyrights.

About 1566 there was a provision that works should be registered before

publication without charge, and a complete registry of published works

was kept in Venice. In 1569 as many as 117 copyright entries were made

in Venice, and so few, after the plague years, as seven in 1599. Only

two applications are recorded as refused by the Senate. The one recorded

instance of punishment for piracy was that on the work of Pappa Alesio

of Corfu, wherein the infringer was fined 200 ducats, besides ten ducats

for each unauthorized copy printed, and was forbidden to print for ten

years.

About 1600 the exodus of printers from Venice was checked by

legislation, and in 1603 an elaborate decree provided copyright for

twenty years on books first published in Venice, for ten years on books

first published in Italy but registered in Venice, or on books not

printed in Venice within the previous twenty years, and for five years

on books not printed within ten years previous, and also a fine of

twenty-five ducats for the false use of "Venetia" in the imprint. Later,

as is evidenced by complaints in 1671, deposit copies were required for

the libraries of St. Mark and of Padua. By the close of the seventeenth

century the provisions for copyright in Venice had become so

complicated, according to Putnam, following Brown's historical study of

"The Venetian printing press," as to require the following processes,

most of them involving a fee: "_testamur_ from the ducal secretary;

certificate from the Rifformatori of the University of Padua;

_imprimatur_ from the Chiefs of the Ten; revision by the Superintendent

of the Press; revision by the public proof-reader; collation of the

original text with the text as printed, by the secretary to the

Rifformatori; certificate from the librarian of St. Mark that a copy had

been deposited in the library; examination by experts appointed by the

Proveditori to establish the market price of the book."

{Sidenote: Florence}

Florence was second only to Venice in the production of books and the

protection of authors, and the records of Florentine printing show that

in the sixteenth century international privileges were sought and

obtained. Thus the printer of a Florentine edition of the Pandects, in

1553, obtained privileges also in Spain, France and the two Sicilies,

possibly through a Papal grant.

{Sidenote: Control by the Church}

By 1515, under Leo X, patron of art and letters, the Holy See had

asserted its jurisdiction over copyrights and privileges, not only in

its own territory, but throughout Italy and Germany, and elsewhere,

under pain of spiritual punishments. Fra Felice of Prato, a converted

Jew, had obtained from the Pope a privilege for certain Hebrew works

valid throughout all Europe, the denial or infringement of which was

punishable by excommunication; but he took the precaution to obtain a

privilege also from the Venetian authorities. There is other evidence of

a compromise policy involving approval from the Church before a secular

privilege was granted, especially of theological works. Throughout

Catholic countries the _index expurgatorius_ banned for the most part

the printing of forbidden books; and this made Holland later the chief

centre of printing, since the placing of a work in the _index_ invited

prompt reprint by Dutch publishers. It was perhaps a survival of a

requirement for deposit of such books that Holland so long remained the

only nation in Europe conditioning copyright on deposit of a copy

printed within the country.

{Sidenote: In France}

In France, after the invention of printing, the functions of the

_libraires jures_, under the authority given by the King through the

University of Paris, naturally came to include books, and this relation

was continued until the Revolution of 1789. Copyrights throughout this

period seem to have been in perpetuity. At the beginning of the

fifteenth century, in the times of Louis XII, "letters of the King"

forbade booksellers, printers and other persons to "introduce foreign

impressions" of the books to which such letters were appended. They were

usually issued to printers. In 1537, under Francis I, a work had first

to secure "the King's approval given through the royal librarian," a

copy must be deposited in the library of the royal chateau of Blois, and

the selling of foreign works was permitted only after approval as worthy

of a place in the royal library,--but for these last the library was to

pay the usual price. In 1556 a general ordinance of Henry II defined

literary property, and publication of condemned books was declared

treason. In 1566 the "Ordinance de Moulins" of Charles IX made further

definition; and letters patent of Henry III, in 1576, referred back to

these earlier ordinances. Infringement of such privileges was punished

with especial severity in France, for, as quoted by Lowndes, such

conduct was thought "worse than to enter a neighbor's house and steal

his goods: for negligence might be imputed to him for permitting the

thief to enter: but in the case of piracy of copyright, it was stealing

a thing confided to the public honor." Louis XIV in 1682 visited it with

corporal punishment, and for a second offence decreed in 1686 also that

the offender should be forever disabled from exercising his trade of

bookseller or printer.

Copyrights continued in perpetuity until all royal privileges were

abolished in 1789 by the National Assembly, after which in July, 1793, a

general copyright law was passed, granting copyright to an author for

his life and to his heirs for ten years thereafter.

{Sidenote: In England}

In England, a Royal Printer was appointed in 1504, and to his successor,

Richard Pynson, in 1518, the first printing "privilege" was issued, in

the form of a prohibition for two years of the printing by any other

person of a certain speech to which this first English copyright notice

was appended. Bishop Fell, in his memoirs on the state of printing in

the University of Oxford, states that this University had been granted

certain exclusive privileges of transcribing and multiplying books by

means of writing; and Lowndes in his early "Historical sketch of the law

of copyright," published in 1840 and 1842, cites many early privileges,

most commonly for seven years, granted after the invention of printing.

An early enactment of Richard III, in 1483, had encouraged the

circulation of books by exempting from certain restraints on aliens "any

artificer, or merchant stranger, of what nation or country he be, for

bringing into this realm, or selling by retail or otherwise, any books

written or printed, or for inhabiting within this said realm for the

same intent, or any scrivener, alluminor, reader, or printer of such

books." But fifty years later, under Henry VIII, this exemption was

repealed by an act, "for printers and binders of books," which provided

that no persons "resident or inhabitant within this realm shall buy to

sell again, any printed books brought from any parts out of the King's

obeysance, ready bound in boards, leather, or parchment," or buy "of any

stranger born out of the King's obedience, other than of denizens, any

manner of printed books brought from any parties beyond the sea, except

only by engross, and not by retail"--the buyer to be punished by a fine,

of which a moiety was to go to the informer. The act also contained

provisions to "reform and redress," through the Chancery judges with

"twelve honest and discreet persons," "too high and unreasonable

prices."

{Sidenote: Book restriction}

The quaint preamble of this act of 1533 sets forth as its "whereas," in

reference to the act of Richard III, that "there hath come to this realm

sithen the making of the same, a marvelous number of printed books, and

daily doth; and the cause of the making of the same provision seemeth to

be, for that there were but few books, and few printers within this

realm at that time, which could well exercise and occupy the said

science and craft of printing; nevertheless, sithen the making of the

said provision, many of this realm, being the King's natural subjects,

have given them so diligently to learn and exercise the said craft of

printing, that at this day there be within this realm a great number

cunning and expert in the said science or craft of printing, as able to

exercise the said craft in all points, as any stranger in any other

realm or country; and furthermore, where there be a great number of the

King's subjects within this realm, which live by the craft and mystery

of binding of books, and that there be a great multitude well expert in

the same, yet all this notwithstanding, there are divers persons that

bring from beyond the sea great plenty of printed books, not only in the

Latin tongue, but also in our maternal English tongue, some bound in

boards, some in leather, and some in parchment, and them sell by retail,

whereby many of the King's subjects, being binders of books, and having

no other faculty wherewith to get their living, be destitute of work and

like to be undone, except some reformation herein be had." This is

interesting in connection with the American manufacturing clause.

{Sidenote: Early English protection}

Henry VIII granted many printing privileges, and in 1530 the first

English copyright to an author was issued to John Palsgrave, who, having

prepared a French grammar at his own expense, received a privilege for

seven years. In 1533 appeared the first complaint of piracy, that of

Wynken de Worde, who obtained the King's privilege for his second

edition of Witinton's Grammar, because Peter Trevers had reprinted it

from the edition of 1523. Up to the middle of the sixteenth century

copyrights were in form printers' licenses, and even in the case cited

Palsgrave seems to have been recognized rather because he published his

own book than because he wrote it.

{Sidenote: The Stationers' Company}

The Stationers' Company, created by Henry VIII and chartered under Queen

Mary in 1556, though the development of an earlier guild dating from

1403, was in part a device to prevent seditious printing, by prohibiting

any printing in England except by those registered in its membership. In

1558, under a second charter, its by-laws provided that every one who

printed a book should register it and pay a fee, and those who failed to

do this, or who printed another member's book, were to be fined. In 1562

licenses were declared void "if any other has a right," and in 1573

sales of "copy" are entered. The practice had grown up of granting

patents or monopolies to persons for a whole class of books; the

Stationers' Company itself held that for almanacs up to a very late

period, and the Crown has retained that on the Bible and the Book of

Common Prayer to the present day. These monopolies were defied, and the

Star Chamber decree of 1566, disabling offending printers from

exercising their trade and prescribing imprisonment, did not avail. In

1640 the Star Chamber and all the regulations of the press were

abolished by the Long Parliament, but the abuse of unlicensed printing

led to a new licensing act in 1643, which prohibited printing or

importing without consent of the _owner_, on pain of forfeiture of

copies to the owner, and which renewed the order that all books should

be entered in the register of the Stationers' Company. The early

registers still exist in Stationers' Hall, near Paternoster Row, London,

in quaint and almost undecipherable chirography, and some of them have

been reissued in _facsimile_. It was against the licensing act of this

date that Milton, in 1644, printed his "Areopagitica," but he

particularly excepts from his criticism of the act the part providing

for "the just retaining of each man his several copy, which God forbid

should be gainsaid."

{Sidenote: Statutory provisions}

In 1649 Parliament provided a penalty of 6_s._ 8_d._ and forfeiture for

the reprinting of registered books, and prohibited presses except at

London, Finsbury, York, and the universities, and in 1662 it added the

requirement of deposit of a copy at the King's library and at each of

the universities. To prevent fraudulent changes in a book after

licensing, it was further required that a copy be deposited with the

licenser at the time of application--apparently the origin of our

record-deposit. With the expiration of these acts in 1679, legislative

penalties lapsed and piracy became common. Charles II in 1684 renewed

the charter of the Stationers' Company, approved its register, and

confirmed to proprietors of books "the sole right, power, and privilege

and authority of printing, as has been usual heretofore." The licensing

act of 1649-62 was revived in 1685, and renewed up to 1694, although the

booksellers now petitioned against it, and eleven peers protested

against subjecting learning to a mercenary and perhaps ignorant

licenser, and destroying the property of authors in their copies. The

law lapsed because of the indignation of the Commons against the

arbitrary power of the license, but the result was the abolition of

statutory penalties, which left the punishment of piracy a matter of

damages at common law, requiring a separate action for each copy sold,

usually against irresponsible people. Piracy again flourished. The right

at common law seems, however, to have been unquestioned, and the Court

of Common Pleas held that a plaintiff who had purchased from the

executors of an author was owner of the property at common law. Owners

of literary property petitioned Parliament, 1703 to 1709, for security

and redress, declaring that the property of English authors had always

been held as sacred among the traders, that conveyance gave just and

legal title, that the property was the same with houses and other

estates, and that existing "copies" had cost at least L50,000, and had

been used in marriage settlements and were the subsistence of many

widows and orphans. This led to the famous statute of Anne, introduced

in 1709, and passed March, 1710, "for the encouragement of learning,"

said to have been drawn in its original form by Swift, which remains the

practical foundation of copyright in England and America to-day.

III

THE DEVELOPMENT OF STATUTORY COPYRIGHT IN ENGLAND

{Sidenote: The statute of Anne as foundation}

The statute of Anne, the foundation of the present copyright system of

England and America, which took effect April 10, 1710, gave the author

of works then existing, or his assigns, the sole right of printing for

twenty-one years from that date and no longer; of works not then

printed, for fourteen years and no longer, except in case he were alive

at the expiration of that term, when he could have the privilege

prolonged for another fourteen years. Penalties were provided, which

could not be exacted unless the books were registered with the

Stationers' Company, and which must be sued for within three months

after the offence. If too high prices were charged, the Queen's officers

might order them lowered. A book could not be imported without written

consent of the owner of the printing right. The number of deposit copies

was increased to nine. The act was not to prejudice any previous rights

of the universities and others.

{Sidenote: Its relations to common law}

{Sidenote: The crucial cases}

This act did not touch the question of rights at common law, and soon

after its statutory term of protection on previously printed books

expired, in 1731, lawsuits began. The first was that of Eyre _v._

Walker, in which Sir Joseph Jekyll granted, in 1735, an injunction as to

"The whole duty of man," which had been first published in 1657, or

seventy-eight years before. In this and several other cases the Court of

Chancery issued injunctions on the theory that the legal right was

unquestioned. But in 1769 the famous case of Millar _v._ Taylor, as to

the copyright of Thomson's "Seasons," brought directly before the Court

of King's Bench the question whether rights at common law still existed,

aside from the statute and its period of protection. In this case Lord

Mansfield and two other judges held that an author had, at common law, a

perpetual copyright, independent of statute, one dissenting justice

holding that there was no such property at common law. The copyright was

sold by Millar's executors to Becket, who prosecuted Donaldson for

piracy and obtained from Lord Chancellor Bathurst a perpetual

injunction. In 1774, in the famous case of Donaldson _v._ Becket, this

decision was appealed from, and the issue was carried to the highest

tribunal, the House of Lords.

{Sidenote: The Judges' opinions}

The House of Lords propounded five questions to the judges. These, with

the replies,[1] were as follows:

I. Whether, at common law, an author of any book or literary composition

had the sole right of first printing and publishing the same for sale;

and might bring an action against any person who printed, published and

sold the same without his consent? Yes, 10 to 1 that he had the sole

right, etc.,--and 8 to 3 that he might bring the action.

II. If the author had such right originally, did the law take it away,

upon his printing and publishing such book or literary composition; and

might any person afterward reprint and sell, for his own benefit, such

book or literary composition against the will of the author? No, 7 to 4.

III. If such action would have lain at common law, is it taken away by

the statute of 8th Anne? And is an author, by the said statute,

precluded from every remedy, except on the foundation of the said

statute and on the terms and conditions prescribed thereby? Yes, 6 to 5.

IV. Whether the author of any literary composition and his assigns had

the sole right of printing and publishing the same in perpetuity, by the

common law? Yes, 7 to 4.

V. Whether this right is any way impeached, restrained, or taken away by

the statute of 8th Anne? Yes, 6 to 5.

Footnote 1: The votes on these decisions are given

differently in the several copyright authorities. These

figures are corrected from 4 Burrow's Reports, 2408, the

leading English parliamentary reports, and are probably

right.

{Sidenote: The Lords' decision}

These opinions, that there was perpetual copyright at common law, which

was not lost by publication, but that the statute of Anne took away that

right and confined remedies to the statutory provisions, were directly

contrary to the previous decrees of the courts, and on a motion seconded

by the Lord Chancellor, the House of Lords, 22 to 11, reversed the

decree in the case at issue. This construction by the Lords, in the case

of Donaldson _v._ Becket, of the statute of Anne, has practically "laid

down the law" for England and America ever since.

{Sidenote: Protests}

Two protests against this action deserve note. The first, that of the

universities, was met by an act of 1775, which granted to the English

and Scotch universities (to which Dublin was added in 1801), and to the

colleges of Eton, Westminster and Winchester, perpetual copyright in

works bequeathed to and printed by them. The other, that of the

booksellers, presented to the Commons February 28, 1774, set forth that

the petitioners had invested large sums in the belief of perpetuity of

{Sidenote: Supplementary legislation}

In 1801 an act was passed authorizing suits for damages [at common law,

as well as penalties under statute] during the period of protection of

the statute, the need for such a law having been shown in the case of

Beckford _v._ Hood in 1798, wherein the court had to "stretch a point"

to protect the plaintiff's rights in an anonymous book, which he had not

entered in the Stationers' register.

{Sidenote: The Georgian period}

Meantime, during the Georgian period, there had been much incidental

limitation of prices was repealed by the act of 1739, which also

continued the prohibition of the importation of foreign reprints,

further continued in later acts or customs regulations from time to

time, until these were disposed of by the statute law revision act of

1867. Copyright had been extended to engravings and prints by successive

acts of 1734-5 (8 George II, c. 13), 1766-7 (7 George III, c. 38) and

1777 (17 George III, c. 57); to designs for linen and cotton printing by

acts of 1787, 1789 and 1794; to sculpture by acts of 1798 and 1814 (54

George III, c. 56). A private copyright act of 1734 granted to Samuel

Buckley, a citizen and stationer of London, sole liberty of printing an

improved edition of the histories of Thuanus, and the engravings act of

1767 contained a similar special provision for the widow of Hogarth. In

1814 also, copyright in books was extended to twenty-eight years and the

remainder of life, and the author was relieved from delivering the

eleven library copies then required, except on demand. The university

other acts given with specific citation above, still constitute, in

certain unrepealed provisions, a part of the English law, although

others of their provisions and other laws were repealed by later

1867.

{Sidenote: Legislation under William IV}

In the reign of William IV the dramatic copyright act of 1833 (3 William

IV, c. 15) became, and in part remains, the basis of copyright in drama.

The lectures copyright act of 1835 (5 & 6 William IV, c. 65) for the

first time covered that field. In 1836 the prints and engravings

those classes in that country, and another copyright act (6 & 7 William

IV, c. 110) reduced the number of library copies required to five. These

laws also remain in force, in unrepealed provisions, as a part of

British copyright law.

{Sidenote: The Victorian act of 1842}

In 1841, under the leadership of Serjeant Talfourd, author of "Ion" and

other dramatic works, a new copyright bill was presented to the House of

Commons, in the preparation of which George Palmer Putnam, the American

publisher, then resident in London, had been consulted. It provided for

compulsory registration and extended the term to life and thirty years.

The bill attracted little attention and met with no opposition until the

second reading, when Lord Macaulay, a bachelor, interested in fame

rather than profit to an author or his descendants, attacked the bill

and "the great debate" ensued. Macaulay offered a bill limiting

compromise, by which the term was made forty-two years or the life of

the author and seven years, whichever the longer. The resulting

repealing them. As a result, provisions not specifically repealed or

superseded remained in force, and the act of 1842, though serving since

as the basic act, has had to be construed with the previous acts in

view. The bill practically preserved, however, the restrictions of the

statute of Anne. The term of forty-two years or life and seven years is

applied to articles in periodicals, but the right in these reverts to

the author after twenty-eight years. The Judicial Committee of the Privy

Council may authorize the publication of a work which after the author's

death the proprietor of the copyright refuses to republish.

{Sidenote: Protection of designs}

In the same year, 1842, there was passed also a copyright in designs

act, covering designs for articles of manufacture, consolidating

previous laws on this specific subject from 1787 to 1839 (two bills in

this last year having extended protection to printing designs for woolen

and other fabrics and to articles of manufacture generally), and

providing for a registrar for such designs,--in which act the careless

use of the word "ornamenting" seemed so to limit the scope that an

amendatory act was passed in 1843.

{Sidenote: Subsequent acts}

An international copyright act, introduced in the first year of the

Victorian reign, had been passed in 1838, to protect foreign books

reprinted in England, but it proved inadequate and was repealed by the

subsequent act of 1844 (7 & 8 Victoria, c. 12), providing more

comprehensively for international copyright, on the basis of

registration and deposit in London. The colonial copyright act of 1847

(10 & 11 Victoria, c. 95) authorized copyright legislation by any

colony, subject to the approval of the Crown, and the suspension for

such colony of the prohibition of foreign reprints, which act is

therefore often cited as the foreign reprints act. An act of 1850

further covered designs and provided for their provisional registration,

and one in 1851 protected exhibits at the international exhibition of

that year in London. A third international copyright act was passed in

1852 (15 & 16 Victoria, c. 12) covering translations and including an

authorization of a special treaty with France. The fine arts copyright

act of 1862 (25 & 26 Victoria, c. 68) extended copyright to paintings,

drawings, and photographs, hitherto unprotected, for life and seven

years. A fourth international copyright act of 1875 (38 & 39 Victoria,

c. 12) protected foreign dramatic works from imitation or adaptation on

the English stage, which had been specifically permitted by the previous

law, and in the same year "The Canada copyright act" (38 & 39 Victoria,

c. 53) gave effect to a Canadian parliament act respecting copyright

reprints.

{Sidenote: The Royal Commission report of 1878}

"The law of England, as to copyright," says the report of the Royal

provisions of fourteen Acts of Parliament, which relate in whole or in

part to different branches of the subject, and partly of common law

principles, nowhere stated in any definite or authoritative way, but

implied in a considerable number of reported cases scattered over the

law reports." The digest, by Sir James Stephen, appended to this report,

is presented by the Commission as "a correct statement of the law as it

stands." This digest is one of the most valuable contributions to the

literature of copyright, but the frequency with which such phrases occur

as "it is probable, but not certain," "it is uncertain," "probably," "it

seems," shows the state of the law, "wholly destitute of any sort of

arrangement, incomplete, often obscure," as says the report itself. The

digest is accompanied, in parallel columns, with alterations suggested

by the Commission, and it is much to be regretted that their work failed

to reach the expected result of an act of Parliament. The evidence taken

by the Commission forms a second blue-book, also of great value.

This report and digest covered legislation through 1875, inclusive of

the Canada act. They seem also to have regarded, though the act is not

specified in the schedule, the consolidated customs act of 1876 (39 & 40

Victoria, c. 36), which incidentally contained the provisions for the

prohibition of the importation of copyright books.

{Sidenote: Later legislation}

Despite the recommendations of the Commission and several later

endeavors to pass a comprehensive copyright act,--of which the most

important was Lord Monkswell's bill introduced into Parliament on behalf

of the British Society of Authors, November 16, 1890, and given in full

with an analysis by Walter Besant in George Haven Putnam's "Question of

to two topics, international copyright and the vexed question of musical

compositions.

{Sidenote: International copyright}

The international copyright act of 1886 (49 & 50 Victoria, c. 43),

amending and extending, and in part repealing the earlier international

through Orders in Council, to become a party to international

agreements, particularly the Berne copyright convention of 1886,

ratified in 1887; this was made effective with respect to the eight

other countries which were parties to the original Berne convention by

the Order in Council of November 28, 1887, taking effect December 6,

1887. The convention was to extend to the British possessions, though

with exceptions in some respects. The revenue act of 1889 (52 & 53

Victoria, c. 42) extended the prohibition of importation to foreign

works copyrighted under the act of 1886, "printed or reprinted in any

country or state" other than that "in which they were first published,"

if registered as required by the customs authorities.

{Sidenote: Musical copyright}

The protection of musical compositions was in such confused and

unsatisfactory condition that special legislation was necessary. The

recent laws on this subject, described in detail in the chapter on

dramatic and musical copyright, include the copyright (musical

compositions) act of 1882 (45 & 46 Victoria, c. 40); the copyright

(musical compositions) act of 1888 (51 & 52 Victoria, c. 17); the

musical (summary proceedings) copyright act of 1902 (2 Edward VII, c.

15); and the musical copyright act of 1906 (6 Edward VII, c.

36),--following the report of the Musical Copyright Committee of

1904,--which successively met imperfections developed in applying the

previous law.

{Sidenote: Committee report of 1909}

After the adoption of the revised international copyright convention

signed at Berlin November 13, 1908, modifying the Berne-Paris

conventions, a Committee on the law of copyright consisting of seventeen

publicists, authors, artists, publishers and others was appointed by

minute of March 9, 1909, by the President of the Board of Trade, to

consider and report upon the modification of domestic legislation in

conformity with the Berlin agreement of 1908. The Committee made a

report in December, 1909, strongly advising that domestic legislation be

brought into line with international practice and that the copyright

term in Great Britain be for life and fifty years. With the report was

printed a blue-book of minutes of evidence, containing valuable

appendixes which included a _projet de loi type_ (model bill) on

Association, and an artistic copyright bill drafted by the Artistic

{Sidenote: Imperial copyright conference of 1909}

In the early part of 1909 an Imperial copyright conference was also held

in London, attended by Crown officials and representatives from all of

the self-governing dominions, at which certain resolutions for copyright

betterment were adopted. Its minutes and resolutions were also presented

to Parliament.

{Sidenote: The pending bill}

As a result of the deliberations and reports of these two bodies, "a

bill to amend and consolidate the law relating to copyright" (1 George

V) was introduced into the House of Commons July 26, 1910, in the names

of Mr. Buxton, Mr. Solicitor-General, Colonel Seely and Mr. Tennant, the

adoption of which would provide a copyright code similar in extent to

the American code of 1909, and applicable throughout the British

dominions, with the proviso that the self-governing dominions may accept

or modify the code or legislate separately, and providing also for

international copyright. The bill adopted most of the features of the

Berlin convention including the term of life and fifty years, covered

literary, dramatic, musical and artistic works, including architectural

works of art, and while distinguishing between first publication and

performance, included under copyright acoustic or visual performance or

exhibition and control for mechanical reproduction. The bill, somewhat

modified, was reintroduced into the subsequent Parliament March 30,

1911, emerged from committee with important alterations July 13, 1911,

and was passed with slight additional changes by the House of Commons

August 17, and first read in the House of Lords August 18, 1911. On

passage of the House of Lords, it becomes effective July 1, 1912, unless

earlier date is provided by Order in Council. The bill repeals by

specific schedule all existing laws except specified sections in the

fine arts copyright act of 1862, the musical copyright acts of 1902 and

1906, and the copyright provisions in the customs consolidation act of

1876 and the revenue act of 1889. The provisions of the new measure are

specifically treated and summarized comprehensively in later chapters

and the full text is given in the appendix.

{Sidenote: Design patents}

The bill does not, however, repeal the previous law as to copyright in

designs, which had continued to receive consideration during the

Victorian reign in laws, later than those cited, of 1858-1861, and thus

finally became merged in the protection of patents. Thus "designs

capable of being registered under the patents and designs act, 1907,"

are specifically excepted under clause 22 of the proposed copyright

code.

{Sidenote: Common law rights}

It seems possible that, under the precedent of the acts of 1775 and

1801, the common law rights practically taken away by the statute of

Anne and specifically abrogated by the proposed bill, could have been

restored by legislation. These restrictions have not only ruled the

practice of England ever since, but they were embodied in the

Constitution of the United States, and have influenced alike our

legislators and our courts.

THE HISTORY OF COPYRIGHT IN THE UNITED STATES

{Sidenote: Constitutional provision}

The Constitution of the United States authorized Congress "to promote

the progress of science and useful arts by securing for limited times,

to authors and inventors, the exclusive right to their respective

writings and discoveries." Previous to its adoption, in 1787, the nation

had no power to act, but on Madison's motion, Congress, in May, 1783,

recommended the States to pass acts securing copyright for fourteen

years.

{Sidenote: Early state legislation}

Connecticut in January, 1783, Massachusetts in March, 1783, and Maryland

in April, 1783, had already provided for copyright, twenty-one years

being the usual period. New Jersey on May 27, 1783, and New Hampshire

and Rhode Island in December of the same year, followed Madison's

suggestion. Pennsylvania and South Carolina in March, 1784, Virginia and

North Carolina in 1785, Georgia and New York in 1786, also passed

separately provided for copyright,--thanks to the vigorous copyright

crusade of Noah Webster, who traveled from capital to capital,--when the

United States statute of 1790 made them unnecessary.

{Sidenote: The act of 1790}

This act followed the precedent of the English act of 1710, and gave to

authors who were citizens or residents, their heirs and assigns,

fourteen years more, if the author were living at expiration of the

first term. A printed title must be deposited before publication in the

clerk's office of the local United States District Court; notice must be

printed four times in a newspaper within two months after publication; a

copy must be deposited with the United States Secretary of State within

six months after publication; the penalties were forfeiture and a fine

of fifty cents for each sheet found, half to go to the United States; a

remedy was provided against unauthorized publication of manuscripts.

{Sidenote: 1802-1867}

{Sidenote: The revised act of 1870}

{Sidenote: 1874-1882}

This original and fundamental act was followed by others--in 1802,

requiring copyright record to be printed on or next the title-page, and

including designs, engravings and etchings; in 1819, giving United

States Circuit Courts original jurisdiction in copyright cases; in 1831

(a consolidation of previous acts), including musical compositions,

extending the term to twenty-eight years, with renewal for fourteen

years to author, widow, or children, doing away with the newspaper

notice except for renewals, and providing for the deposit of a copy with

the district clerk (for transmission to the Secretary of State) within

three months after publication; in 1834, requiring record of assignment

in the court of original entry; in 1846 (the act establishing the

Smithsonian Institution), requiring one copy to be delivered to that,

and one to the Library of Congress; in 1855, a postal provision for free

mailing of deposits; in 1856, securing to dramatists the right of

performance; in 1859, repealing the provision of 1846 for the deposit of

copies, and making the Interior Department instead of the State

Department the copyright custodian; in 1861, providing for appeal in all

negatives, and again requiring deposit with the Library of Congress,

within one month from publication; in 1867, providing $25 penalty for

failure to deposit. This makes twelve acts bearing on copyright up to

1870, when a general act took the place of all, including "paintings,

drawings, chromos, statues, statuary, and models or designs intended to

be perfected as works of the fine arts." This did away with the local

District Court system of registry, and made the Librarian of Congress

the copyright officer, with whom printed title must be filed before, and

two copies deposited within ten days after, publication. In 1873-4 the

4971 (also see secs. 629 and 699), and in 1874 an amendatory act made

legal a short form of record, "Copyright, 18--, by A. B.," and relegated

labels to the Patent Office. In 1879 the Post Office appropriation bill

contained a proviso against the transmission of any publication which

violates copyright; in 1882 an amendment dealt with the position of the

{Sidenote: International copyright legislation, 1891}

In 1891 there was passed, after a long campaign, the so-called

international copyright act, extending copyright to the citizens of

other nations in case of reciprocal grants by such nations, and

providing that the copyright on books and certain other articles should

be conditioned on manufacture in the United States. In 1893 an

amendatory act gave the same effect to copies deposited "on or before

publication." In 1895 the public documents bill provided that no

government publication should be copyrighted, and another bill imposed

penalties in the case of infringement of photographs and of original

works of art. In 1897 an act provided that unauthorized representation,

wilful and for profit, of any dramatic or musical composition is a

misdemeanor punishable by imprisonment; another act provided for the

appointment of a Register of Copyrights under the direction and

supervision of the Librarian of Congress; and a third act provided

penalty for printing false claim of copyright and prohibited the

importation of articles bearing a false claim of copyright. In 1904

provision was made for protection to exhibitors of foreign literary,

artistic or musical works at the Louisiana Purchase Exposition. A bill

of 1905 permitted _ad interim_ copyright for one year of books published

abroad if registered here within thirty days publication and bearing

notice of reservation.

{Sidenote: Private copyright acts}

A curious incident in American copyright legislation has been the

passage of private copyright acts, nine in all, of which the earliest in

1828, as amended in 1830 and 1843, continued the copyright of John

Rowlett "in a useful book, called Rowlett's Tables of discount and

interest" from its original publication in 1802 till 1858,--curiously

the present period of fifty-six years. In 1849 the copyright of Levi H.

Corson in a perpetual calendar or almanac was renewed by special act. In

1854 an appropriation of $10,000 was made to Thomas H. Sumner for his

new method of ascertaining a ship's position and the copyright was

extinguished. In 1859 a special act gave to "Mistress Henry R.

Schoolcraft" and her heirs for fourteen years the right to republish her

husband's work on the Indian tribes originally published by order of

Congress and to make any abridgement thereof, and a similar special

for his widow. An act of 1874 authorized the validation of William Tod

Helmuth's work on surgery which had been imperfectly entered for

for like reason the copyright of Judson Jones in a work on orthoepy.

{Sidenote: American possessions}

In 1900 the act for the government of the territory of Hawaii repealed

the Hawaiian copyright act of 1888 and extended United States copyright

to Hawaii. In the same year the act providing temporary government for

Porto Rico extended the copyright laws to that island. In 1904 the

Attorney General rendered an opinion that Philippine authors were

entitled to United States copyright but that the book must be

manufactured within the United States. Hawaii, Porto Rico and the

Philippine Islands, as well as Alaska, were later included by name in

the jurisdiction of the code of 1909. American copyright was extended to

the Canal Zone by War Department order in 1907.

{Sidenote: The American code of 1909}

Finally, in 1909, there was passed the new copyright code repealing all

previous legislation and providing comprehensively for the whole subject

of copyright, literary, artistic, dramatic, musical, or other. Under

this code copyright is effected by publication with the statutory notice

of copyright and completed by registration of two deposit copies sent to

the Copyright Office promptly after publication. The manufacturing

clause is continued and extended to require printing and binding as well

as type-setting within the United States. The musical author is given

control over mechanical reproductions though under provision for

compulsory license in case he permits any such reproduction. The

making fifty-six years. Rights of performance are included under

registration. These are the salient features of the code which is stated

and discussed in detail in succeeding chapters.

{Sidenote: State protection of playright}

In line with the dramatic act of 1897, the dramatic authors between 1895

and 1905 procured state legislation in the States of New Hampshire, New

York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts,

Minnesota, California, Wisconsin, Connecticut and Michigan, differing

somewhat in form, to give effect to the federal copyright laws in

respect to dramatic performance or to apply the principles of common law

through the punishment of dramatic companies disregarding performing

rights.

{Sidenote: Citations}

{Sidenote: Trade-Mark act}

Citations of all these laws will be found in Appendix A of the report of

report of the Librarian of Congress for 1904; and the full text of the

United States acts, except the later ones, are given in "Copyright

Enactments 1783-1904" issued from the Copyright Office in 1905 as

Bulletin No. 3, and in a second revised and enlarged edition, extending

to 1906, reissued in 1906. The Trade-Mark act of February 20, 1905,

supplemented by an act of May 4, 1906, covers the protection of labels,

etc., excluded from copyright by the copyright act, and is given, with a

list of trade-mark laws of foreign nations, and trade-mark treaties with

them, rules, indexes, etc., in a Government publication, entitled

"United States Statutes concerning the registry of trade-marks with the

rules of the Patent Office relating thereto."

{Sidenote: Common law relations}

The act of 1790 received an interpretation, in 1834, in the case of

Wheaton _v._ Peters (rival law reports), at the bar of the U. S. Supreme

Court, which placed copyright in the United States exactly in the

_status_ it held in England after the decision of the House of Lords in

1774. The court referred directly to that decision as the ruling

precedent, and declared that by the statute of 1790 Congress did not

affirm an existing right, but created a right. It stated also that there

was no common law of the United States and that (English) common law as

to copyright had not been adopted in Pennsylvania, where the case arose.

So late as 1880, in Putnam _v._ Pollard, claim was made that this ruling

decision did not apply in New York, which, in its statute of 1786,

expressly "provided, that nothing in this act shall extend to, affect,

prejudice, or confirm the rights which any person may have to the

printing or publishing of any books or pamphlets at common law, in cases

not mentioned in this act." But the N. Y. Supreme Court decided that the

precedent of Wheaton _v._ Peters nevertheless held. During the

discussion of the present copyright code, Edward Everett Hale consulted

with other veteran authors whose early works were passing out of

of copyright under common law after the expiration of the statutory

period. But on proposing such a case to legal counsel he became assured

that such a suit could not be maintained.

{Sidenote: Divided opinions}

As in the English case of Donaldson _v._ Becket, the decision in the

American ruling case of Wheaton v. Peters came from a divided court. The

opinion was handed down by Justice McLean, three other judges agreeing,

Justices Thompson and Baldwin dissenting, a seventh judge being absent.

The opinions of the dissenting judges, given in Eaton S. Drone's "A

treatise on the law of property in intellectual productions," constitute

one of the strongest statements ever made of natural rights in literary

property, in opposition to the ruling that the right is solely the

creature of the statute. "An author's right," says Justice Thompson,

"ought to be esteemed an inviolable right established in sound reason

and abstract morality." There seems, indeed, to be a sense of natural

song belonging to another tribe or singer, and a Chippewa youth may

learn his father's songs, on a customary gift of tobacco, but does not

inherit the right to sing them.

SCOPE OF COPYRIGHT: RIGHTS AND EXTENT

{Sidenote: General scope}

The scope of copyright, or the nature and extent of the right or

privilege, may be said to cover at common law identical rights with

those in any other property, to use the phrase which, in Siam, transfers

these rights to statutory law, but in statutory law must be taken to

depend upon the terms of the statute.

{Sidenote: American provisions}

The new American copyright code, passed March 4, 1909, and in force July

1, 1909, in its fundamental provision broadly sets forth and

specifically defines the scope of copyright, by providing (sec. 1):

"That any person entitled thereto, upon complying with the provisions of

this Act, shall have the exclusive right:

"(a) To print, reprint, publish, copy, and vend the copyrighted work;

"(b) To translate the copyrighted work into other languages or dialects,

or make any other version thereof, if it be a literary work; to

dramatize it if it be a non-dramatic work; to convert it into a novel or

other non-dramatic work if it be a drama; to arrange or adapt it if it

be a musical work; to complete, execute, and finish it if it be a model

or design for a work of art;

{Sidenote: Oral addresses}

"(c) To deliver or authorize the delivery of the copyrighted work in

public for profit if it be a lecture, sermon, address, or similar

production;

{Sidenote: Dramas}

"(d) To perform or represent the copyrighted work publicly if it be a

drama, or, if it be a dramatic work and not reproduced in copies for

sale, to vend any manuscript or any record whatsoever thereof; to make

or to procure the making of any transcription or record thereof by or

from which, in whole or in part, it may in any manner or by any method

be exhibited, performed, represented, produced, or reproduced; and to

exhibit, perform, represent, produce, or reproduce it in any manner or

by any method whatsoever;

{Sidenote: Music}

"(e) To perform the copyrighted work publicly for profit if it be a

musical composition and for the purpose of public performance for

profit; and for the purposes set forth in subsection (a) hereof, to make

any arrangement or setting of it or of the melody of it in any system of

notation or any form of record in which the thought of an author may be

recorded and from which it may be read or reproduced"--which last clause

is, however, limited by an elaborate proviso requiring the licensing of

mechanical musical reproductions in case the copyright proprietor

permits any reproduction by that means, which proviso is given in full

in the chapter on mechanical music.

{Sidenote: Previous American law}

The American law previously defined the scope of copyright (Rev. Stat.

sec. 4952), as "the sole liberty of printing, reprinting, publishing,

completing, copying, executing, finishing, and vending the same; and, in

the case of a dramatic composition, of publicly performing or

representing it, or causing it to be performed or represented by others.

And authors may reserve the right to dramatize or to translate their own

works." The new code is both broader and more definite.

{Sidenote: Unpublished works}

The new American code is specific in preserving to an author previous to

the publication of his work all common law rights in the comprehensive

language (sec. 2): "That nothing in this Act shall be construed to annul

or limit the right of the author or proprietor of an unpublished work,

at common law or in equity, to prevent the copying, publication, or use

of such unpublished work without his consent, and to obtain damages

therefor."

{Sidenote: Common law scope}

In the Washburn form of the copyright bill it was proposed to include a

clause to the effect "that subject to the limitations and conditions of

this Act copyright secured hereunder shall be entitled to all the rights

and remedies which would be accorded to any other species of property at

common law." But this provision was not accepted by the Congressional

Committees and does not form part of the copyright code as enacted.

{Sidenote: Common law in U. S. practice}

The common law of England became the common law of its colonies and

finally of the sovereign States of the United States, and common law is

therefore administered by the state rather than by the federal courts.

In the case of Wheaton _v._ Peters, the U. S. Supreme Court went so far

as to say "there is no common law of the United States," but federal

courts accept and apply in each State the common law as accepted in that

State, and in later years the U. S. Supreme Court has held, as in 1901,

in Western Union Tel. Co. _v._ Call Pub. Co., that where there is a

conflict between the common law as accepted by different States or where

the rule adopted is not in accord with federal courts, the United States

courts will recognize and enforce the common law of England. This use by

the federal courts, as here pointed out by Justice Brewer, is peculiarly

applicable to interstate transactions. The effect of section 2 of the

Congress to accept and enforce the principles of common law and of

equity in the case of unpublished works.

{Sidenote: Statutory limitations}

But in the case of a published work, the courts have denied to copyright

works some of the rights and remedies applicable previous to

publication, because not specifically granted by statute, in accordance

with the established rule that no rights or remedies will be allowed by

the courts unless specifically granted. But the common law right of the

author is recognized by the courts notwithstanding the publication of

his work, if that is done without the author's consent. In 1896, in the

case of Press Pub. Co. _v._ Monroe, the doctrine was specifically held

by the U. S. Circuit Court of Appeals through Judge Lacombe, that the

unauthorized publisher may be restrained and damages obtained by civil

action, and recovery in such an action will not divest the author of any

of his rights or invest any of his rights in the infringer or the

public.

{Sidenote: General rights}

Thus the owner of a copyrightable work may (before publication), as with

other personal property, preserve his work exclusively for his own use,

or he may (1) print, (2) reprint, (3) publish, (4) copy, or (5) vend it;

If it be a literary work he may (6) translate it, or (7) make any other

version thereof, or (8) dramatize it; or

If a work for oral delivery he may (9) deliver or authorize delivery in

public for profit; or

If it be a dramatic work he may (10) convert it into a novel or other

non-dramatic form or (11) perform or represent it, or (as in 5) vend any

manuscript or record thereof, or (12) make or cause to be made any

transcription or record thereof; or (13) exhibit, perform, produce, or

reproduce it in any manner or by any method; or

If it be a musical work he may (14) arrange or (15) adapt it, or (as in

11) perform it publicly for profit, or (16) make any arrangement or (17)

setting of the melody in any notation or by any form of record (the last

subject to the license provision of the statute); or

If a design for a work of art, he may (18) complete, execute, and finish

it,

--all these being specifically reserved and granted to the author,

although in somewhat complex and overlapping phraseology, by the new

American code.

{Sidenote: Inferential rights}

Or, in utilizing his rights at common law or as above granted by

statute, he may (19) give, (20) lend, (21) grant, (22) sell, (23)

manufacture, (24) lease or license, (25) mortgage, or (26) devise his

work or the use of it, or (27) it may pass by inheritance,--as pointed

out by Arthur Steuart, chairman of the Copyright Committee of the

American Bar Association, in his argument before the Congressional

Committees.

{Sidenote: Differentiated rights}

Or, as also pointed out by Mr. Steuart, he may "impose upon any of these

estates any condition or limit," as by limiting the use (28) for special

purposes, (29) at a special price, or (30) for a special time, or (31)

in a special locality, or (32) to a special person.

{Sidenote: Court protection}

The rights scheduled, adds Mr. Steuart, the courts will protect (a) "in

equity by injunction and the recovery of profits"; or (b) "at law by a

civil action for trespass or conversion, with a recovery of special

damages for actual injury or punitive damages for injury to reputation,

or by replevin for the recovery of possession of the work, as well as by

any other form of action known to the common law or statute law and

proper to the protection of this class of property."

{Sidenote: Division of rights}

The owner of the copyright of a book may thus publish a limited edition

of his book and sell it to whom he may please, or for a specified

market. Such specified or divided rights are recognized in Germany as

"_getheiltes Verlagsrecht_," in France as "_edition partagee_," and

there is specific reference to them in the German copyright law. Some of

the specified rights are cognate to the rights of a proprietor of land

to sell a piece of land subject to certain restrictions, agreed upon

with the purchaser or imposed upon the title in the deed of transfer. As

in the frequent practice of restricting use for the purposes of a stable

or a shop, or requiring that only one house shall be built on a

specified number of lots.

{Sidenote: Analysis of property rights}

In an elaborate discussion of fundamental principles in his opinion in

Harper _v._ Donohue, in 1905, affirmed by the Circuit Court of Appeals

in 1906, Judge Sanborn analyzed the property rights of an author before

publication, after unrestricted publication and after publication under

the copyright acts. Among the rights before publication he mentions "the

right to sell and assign the author's interest, either absolutely or

conditionally, with or without qualification, limitation or restriction,

territorial or otherwise, by oral or written transfer. Such literary

property is not subject either to execution or taxation, because this

might include a forced sale, the very thing the owner has the right to

prevent." "Unrestricted publication," he says, "without copyright, is a

transfer to the public to do most of the things the author might do, in

common with the author, except all right of transfer and sale, which

remains to the author; but without advantage, since the work has become,

by the publication, common property." "The copyright acts," he

concludes, "substantially give the following additional rights: To

multiplication and sale of copies; to sell or transfer the unlimited

right of reproduction, sale and publication, the limited right of serial

publication, the right of publication in book form, the right of

translation, the right of dramatization or one or more of these rights

in specific territory, and the right to secure a copyright either

generally, or in one or more countries whose laws permit it, either in

the name of the author or assignee. Also the right to the author to

license the sale or other restricted enjoyment of some lesser right,

without the power to copyright."

The courts have indeed held to very broad principles as to such rights.

In the case of Press Pub. Co. _v._ Monroe, the court said:

{Sidenote: Broad interpretation}

"The right of property includes the right to transfer the subject of it

or any interest in it by gift, grant, or device. And if the fruits of

mental effort are regarded as property, like all other possessions, they

descend to the legatees, the executors, and administrators of their

creditors; they pass by sale or gift to their transferees; the use of

them, limited or unlimited, goes to their licensees, and, logically, the

power of the State is bound to protect forever the successive owners in

the exclusive use and enjoyment thereof."

{Sidenote: Limits of protection}

Where these latter rights are not specifically granted by statute, the

rule has been established by the courts that they will be upheld so far

as necessarily inferable from the rights granted and not further. It is

under this rule that the greater number of the mooted questions in the

application of copyright law have arisen in respect to the scope of

inferences from the statute, in the protection of the property rights

therein conferred, but the courts will not go beyond fair construction

of the letter of the statute.

{Sidenote: Differentiated contracts}

In respect to the rights to give, lend, grant, manufacture, lease or

license, mortgage or devise copyright property, it may be said that

these are subsidiary rights conditioned on and essential to the general

right of property in copyrightable or copyrighted material. An author

may exercise any of these rights in respect to his unpublished work so

far as they are applicable to it, or to his copyrighted work after

publication; and either the copyrightable manuscript or the copyrighted

work may pass by inheritance. Thus an author may manufacture, or cause

to be manufactured, his unpublished work, and he may retain exclusive

control over the manufactured copies so long as he pleases before

publishing the work; and after publication (which involves placing on

public sale, or publicly distributing) he may exercise these rights

negatively by withdrawing his work from further sale. The English law,

however, contains a provision that in certain cases the Crown may

require continuance of publication.

{Sidenote: Enforcement in limited grants}

In respect to the right to limit the use of his work under his sale,

gift, loan, grant, lease, etc., for a special purpose or at a special

price, or for a special time, or in a special locality or to a special

person, these powers of limitation, though implied in the grant of

contracts than upon copyright law.

There can be no such thing as a copyright for a special purpose or for a

special locality, or under other special conditions, for there can be

only one copyright, and that a general copyright, in any one work. But

specific contracts can be made, enforceable under the law of contracts,

as for the sale of a copyrighted book within a certain territory,

provided such contracts or limitations are not contrary to other laws.

Although record of assignment in the Copyright Office is provided for by

the law only for the copyright in general, the separate estates as a

right to publish in a periodical and the right to publish as a book may

be sold and assigned separately, and the special assignment recorded in

the Copyright Office, though this does not convey a right to substitute

in the copyright notice a name other than that of the recorded

proprietor of the general copyright, which can only be changed as

specifically provided in the law under recorded assignment of the entire

{Sidenote: Copyright as monopoly}

granting the copyright. It is a monopoly not in the offensive sense, but

in the sense of private and personal ownership; the public is not the

loser but is the gainer by the protection and encouragement given to the

author. The whole aim of copyright protection is to permit the author to

sell as he pleases and to transfer his rights collectively or severally

to such assigns as he may choose. Copyright is a monopoly only in the

sense that any ownership is a monopoly. Says Herbert Spencer: "If I am a

monopolist, so also are you; so also is every man. If I have no right to

those products of my brain, neither have you to those of your hands. No

one can become the sole owner of any article whatever; and all property

is 'robbery.'" In the copyright debates of 1891, Senator O. H. Platt

rightly said: "The very essence of copyright is the privilege of

controlling the market. That is the only way in which a man's property

in the work of his brain can be assured." And as Senator Evarts pointed

out in the same debate: "The sole question is what we shall do

concerning something which is the essential nature of copyright and

patent protection, namely, monopoly." In discussing patent monopoly and

the law of contracts in Victor Talking Machine Co. _v._ The Fair, the U.

S. Circuit Court of Appeals, through Judge Baker, said, in 1903, that

"within his domain the patentee is czar. The people must take the

invention on the terms he dictates or let it alone for seventeen years."

Thus as the government grants and guarantees the monopoly, it is not to

be taken as in restraint of trade or otherwise contrary to law. Said

Judge Cullen in the case of Murphy _v._ Christian Press Association, in

the Appellate Division of the N. Y. Supreme Court, in 1899, decisions as

to agreements in restraint of trade "have no application to agreements

concerning copyrights and patents, the very object of which is to give

monopolies."

{Sidenote: Limit only in term}

"exclusive rights," as the Constitution provides, the only limitation

upon it should be that indicated in the Constitution which confines

protection to "limited times." The opponents of copyright have

frequently taken the course of falling back upon the plea that in the

interests of the public the author should not have exclusive right to

his writings and to manage his own affairs, but that Congress should

prescribe how he should market his property. This commonly takes shape

in the licensing scheme known in England as the Farrer plan and in

America as the Pearsall-Smith plan, with respect to books; and in the

passage of the "international copyright amendment" of 1891 this plan was

made the basis of attack upon the measure. An analysis of the scheme as

presented by R. Pearsall-Smith of Philadelphia is given by G. H. Putnam,

from the book publisher's point of view, in the "Question of copyright."

In the work on "The law and history of copyright," by Augustine Birrell,

a member of the present British cabinet, this plan is characterized as a

"preposterous scheme." In the case of a book, for instance, a publisher

often suggests to the author the general idea of the book, so that it

would be doubly unjust to permit any other publisher to issue that book

on the compulsory license scheme; and this might hold true, although to

less extent, in other fields of copyright. In any event, the original

publisher makes large investment not only in type-setting, printing, and

binding a book, or in the publishing of any other work, but in

advertising and making a market, and that a rival publisher should have

the benefit of this market without paying the cost is a violation of the

very essence of property. This scheme, however, is applied, in a limited

way and as a compromise, respecting mechanical music, in the American

code of 1909, and constitutes its most serious defect. There is

question, indeed, whether the compulsory license and fixed price may not

be an unconstitutional provision. This matter is more fully discussed in

later chapters.

{Sidenote: Altered theory of copyright}

It should be noted that whereas the previous American law required

certain statutory formalities before publication, the new American code

somewhat alters the theory of copyright, and more nearly conforms

statutory with common law, by making publication with notice the initial

the completion of the copyright and its protection under the statute.

{Sidenote: Publishing}

The definition of the date of publication (sec. 62) as "the earliest

date when copies of the first authorized edition were placed on sale,

sold, or publicly distributed by the proprietor of the copyright or

under his authority" remedies the vagueness of the previous law and

adopts into the statute court decisions to the effect that acts not by

the authority of the author or proprietor do not constitute publication

in the sense of dedication to the public. In other words, it is made

clear that the right to publish inheres in the author and that he cannot

be divested of it without his consent. This is the fundamental principle

of the new law in the vital matter of protecting the author at the

critical point at which an unpublished work, absolutely his own, becomes

a published work, subject to statute. In this respect the American code

of 1909 comes very close to the acceptance of the right in intellectual

property as a natural and inherent right.

{Sidenote: What constitutes publishing}

As to what constitutes publishing, interpretation by the courts based on

previous law will in many respects be applicable to the new code. A book

which has been sold or leased to subscribers on a contract of restricted

use is none the less published, as was set forth in the opinion by Chief

Judge Parker of the N. Y. Court of Appeals in Jewellers' Mercantile

Agency _v._ Jewellers' Weekly Pub. Co. in 1898, and in the opinion by

Judge Putnam of the U. S. Circuit Court in Massachusetts in Ladd _v._

Oxnard in 1896, both having reference to credit-rating books leased to

subscribers for their individual use.

{Sidenote: "Privately printed" works}

Publication depends upon sale or offer to the public, and it is a

question whether the sale or offer of a copyrightable work, as the

proceedings or publications of a society, to the members of that society

only, constitutes publication, to be passed upon by the courts in view

of the specific facts. A work "privately printed" or with the imprint

"printed but not published," given or even sold by the author to his

friends, and not sold generally by his authority, would probably not be

held to be published; but the courts would probably hold that the sale

of a work, though "privately printed," to merely nominal members of a

nominal society, made up of the purchasers of the work, would constitute

publication and, if without copyright notice, dedication.

{Sidenote: Copying}

As to the right to copy, this word in the broad sense as interpreted by

the courts, covers the duplicating or multiplying of copies within the

stated scope of the statute. It was argued in the mechanical music cases

that the word copy extends to any form or method of duplication by which

the thought of the author can be recorded or conveyed, but, as more

fully stated in the chapter on mechanical music, the U. S. Supreme Court

in White-Smith _v._ Apollo Co. in 1908 upheld the decision below that a

perforated roll is not a _copy_ in fact of staff notation, and thus

limited the statutory use of the word to duplication by similar or

corresponding process. It was for this reason that such specific phrases

as "to make any other version," "to convert," "to arrange or adapt," "to

make transcription or record" were included in the new code, although

these would be included in the broader sense of the right "to copy."

{Sidenote: Vending}

The right to vend covers by a comprehensive word those general rights of

sale through which only can the author obtain remuneration for his work.

The most important question which has arisen in respect to the

application of this word, which is used both in the previous laws and in

the present code, has been as to the use of this exclusive right to

limit the conditions of sale after the original sale from the author or

proprietor as vendor to the immediate vendee. The courts have in general

held that the copyright and patent laws, while creating a legal monopoly

for the author or original proprietor, do not authorize any continuing

control, and have indeed gone so far as to indicate that a sale is

absolute and complete unless limited by special contract within the

principles of common or statutory law of contracts. In the leading case

of Keeler v. Standard Folding Bed Co., the U. S. Supreme Court in 1895,

through Justice Shiras, said:

{Sidenote: Control of sale}

"Upon the doctrine of these cases we think it follows that one who buys

patented articles of manufacture from one authorized to sell them

becomes possessed of an absolute property in such articles, unrestricted

in time or place. Whether a patentee may protect himself and his

assignees by special contracts brought home to the purchaser is not a

question before us and upon which we express no opinion. It is, however,

obvious that such a question would arise as a question of contract, and

not as one under the inherent meaning and effect of the patent laws."

{Sidenote: Specific relation to copyrights: the Macy cases}

This question in specific relation to copyrights again came before the

U. S. Supreme Court in a series of cases, known as the Macy cases,

between Isidor and Nathan Straus doing business as R. H. Macy & Co., on

the one side, and the Bobbs-Merrill Co. and Charles Scribner's Sons as

the respective defendants.

In both cases, the publishers had sought to maintain the retail price of

a book, as a right under the copyright law. The Bobbs-Merrill Co.

copyrighted the "Castaway" May 18, 1904, and immediately below the

book at retail is one dollar net. No dealer is licensed to sell it at a

less price, and a sale at a less price will be treated as an

infringement of the copyright."

The Scribners sought to accomplish the same purpose as to their

goods the following notice: "Copyrighted net books published after May

1, 1901, and copyrighted fiction published after February 1, 1902, are

sold on condition that prices be maintained as provided by the

regulations of the American Publishers' Association."

New dealers were required by the American Publishers' Association, in

consideration of a discount allowed by the publisher in question, to

enter into an agreement as indicated, but this agreement Macy & Co.

refused to accept and they bought books as best they could and sold them

at "cut rates," thus inducing dealers from whom the purchases were made

to violate the agreement with the publishers.

{Sidenote: The Bobbs-Merrill case}

In the leading case of Bobbs-Merrill Co., appellant, _v._ Straus, the

opinion of the U. S. Supreme Court was delivered June 1, 1908, by

Justice Day, who said: "The precise question in this case is, does the

sole right to vend (named in section 4952) secure to the owner of the

restrict future sales of the book at retail to the right to sell it at a

certain price per copy, because of a notice in the book that a sale at a

different price will be treated as an infringement, which notice has

been brought home to one undertaking to sell for less than the named

sum? We do not think the statute can be given such a construction, and

it is to be remembered that this is purely a question of statutory

construction. There is no claim in this case of contract limitation, nor

license agreement controlling the subsequent sales of the book. In our

view the copyright statutes, while protecting the owner of the copyright

in his right to multiply and sell his production, do not create the

right to impose by notice, such as is disclosed in this case, a

limitation at which the book shall be sold at retail by future

purchasers, with whom there is no privity of contract."

{Sidenote: The Scribner case}

In the Scribner case the decision delivered on the same day by the same

justice, upheld the lower courts in their view, "that there was nothing

in any of the notices of a claim of right or reservation under the

relief in equity was not open to the federal courts because there was no

diversity of citizenship nor claim above $2000 "requisite to confer

jurisdiction of questions of rights independent of the copyright

statutes." On the allegations of the bill as to alleged contributory

infringement by inducing dealers to sell in violation of agreement, on

which the lower courts held that complainants had not proved an

agreement based upon their printed notice, the Supreme Court declined to

review the question of fact.

{Sidenote: English underselling case}

In the English case of Larby _v._ Love, in 1910, however, Justice

Bucknill in the King's Bench held the defendant liable for damages for

the sale of certain maps to undersellers in disregard of prohibitions

specified in the bill of sale.

{Sidenote: Suits under state law}

The Macy cases included suits in the New York State courts by Straus

_v._ American Publishers' Association _et al._, claiming that the action

of the publishers in endeavoring to maintain rates constituted a

conspiracy in restraint of trade contrary to the statutes. The N. Y.

Court of Appeals held, through Chief Judge Parker, that the agreements

would have been free from legal objections if confined solely to

the right of a dealer to sell books not copyrighted at the price he

chooses. The copyright side of the question was again pressed in the

lower courts and reached the Court of Appeals a second time in 1908,

when it was passed upon by a divided court, four to three, Judge Gray

for the court declining to review its previous action. The dissenting

judges, through Judge Bartlett, held that the decision of the U. S.

Supreme Court in the Bobbs-Merrill case did apply in the current case

and that the State Court of Appeals should therefore conform its

decision to the finding of the federal Supreme Court. The question has

been brought into the federal courts in a new series of suits, and it

has yet to be finally settled by the U. S. Supreme Court, whether the

legal monopoly conferred by the copyright statute safeguards the

state or national.

{Sidenote: Translating}

{Sidenote: "Other version"}

The right "to translate into other languages or dialects" is

strengthened in the new American code by the addition of the phrase "or

to make any other version thereof," and the author is thus given

exclusive right and entire control as to translation of his original

work by himself or others, without specific reservation of rights except

as implied and included in the general copyright notice. The broad

phrase "make any other version thereof" may cover not only translation

into another language, but into another literary form as from prose into

poetry or _vice versa_. No case involving construction of this phrase

seems yet to have arisen to be decided by the courts; but the author of

a narrative poem, like Owen Meredith's "Lucile" or Tennyson's "Enoch

Arden," could probably prevent the transformation of his poetical work

into equivalent prose; and a novelist would have probably a like

protection in case of an attempt to duplicate or transform his story as

a narrative poem. This view is confirmed by the analogous specific

protection of the right to dramatize a work or convert a drama into

non-dramatic form.

{Sidenote: Translating term}

The exclusive right "to translate the copyrighted work into other

languages or dialects, or make any other version thereof, if it be a

literary work; to dramatize it if it be a non-dramatic work" are granted

by the act for the same period as the term of original copyright and the

renewal term, instead of for a shorter period, as ten years, as is the

case in certain foreign legislation. The right to translate or to

dramatize is separate from the right to copyright a translation or

dramatization, as is shown by the fact that a translation or

dramatization can be separately copyrighted for a term extending from

its own date of publication and therefore possibly beyond the copyright

term of the original work, though on the expiration of the primary

the continuing existence of the copyright in the authorized translation

or dramatization. These subjects are more specifically discussed for

translations under the subject-matter of copyright and for

dramatizations under dramatic and musical copyright.

{Sidenote: Oral delivery}

The exclusive right to deliver orally addresses and similar productions

is now specifically included in the American law, as in the laws of some

other countries, and probably involves the right to register, before

publication, any literary production intended for oral delivery before

it is printed in a book or periodical. Thus if Mr. Cable desires to

include in his readings, especially if in public for profit, chapters

from an unpublished novel, or a poet desires to protect his copyright in

a poem which he publicly recites, it may be desirable that he should

purpose; although it is a generally accepted doctrine that oral delivery

does not constitute publication, and that the matter orally delivered

may thus be protected at common law.

{Sidenote: "Publicly and for profit"}

It should be noted that in the case of a lecture or other work for oral

delivery and of a musical composition, the exclusive right is given for

its delivery or performance "publicly and for profit," and in the case

of a drama, "publicly," the words for profit being, probably by

inadvertence, omitted. There is some question, therefore, whether a

copyrighted lecture, drama, or musical composition can be given without

consent of the author privately, or, except in the case of a drama,

gratuitously before the public. In view of the special exception (sec.

28) exempting oratorios, etc., performed for charitable or educational

purposes and not for profit, from authorization or payment, as well as

on general principles of construction, it would seem probable that the

courts would protect the author of a lecture, drama, or musical

composition, except in such instances as a private rendering in a

private house, to which there was not public admission and at which no

fee was charged or collection taken. The cases bearing on this point are

given in the later chapter on dramatic and musical copyright.

{Sidenote: Material and immaterial property}

The American code adopts into the law an important distinction as

between the property in the material and the immaterial rights, hitherto

somewhat uncertain, in the following provision (sec. 41): "That the

copyrighted, and the sale, or conveyance, by gift or otherwise, of the

material object shall not of itself constitute a transfer of the

transfer of the title to the material object; but nothing in this Act

shall be deemed to forbid, prevent, or restrict the transfer of any copy

of a copyrighted work the possession of which has been lawfully

obtained."

The negative provision in this section was inserted in the new copyright

law apparently to differentiate it from patent law with the intent of

preventing the proprietor of a copyrighted work from controlling the

conditions of sale after copies had left his possession. It is doubtful

what, if any, effect this provision may have, as the phrase "lawfully

obtained" would scarcely have the result of limiting and annulling

contractual conditions of sale. The innocent purchase of a stolen book

would not relieve the purchaser from the necessity of returning the

stolen property to its proper owner, although as far as intent,

knowledge, and payment are concerned, he would have "lawfully obtained"

it.

{Sidenote: Schemes not copyrightable}

The scope of copyright cannot be extended to cover a business or other

scheme described in a copyrighted book, as was held in 1906 in Burk _v_.

Johnson by the Circuit Court of Appeals in denying relief under

who copyrighted the articles of association.

{Sidenote: The new British code}

The new British measure defines copyright to mean "the sole right to

produce or reproduce the work or any substantial part thereof in any

material form whatsoever and in any language," thus assuring rights of

translation hitherto imperfect or doubtful; "to perform, or in the case

of a lecture to deliver, the work or any substantial part thereof in

public; if the work is unpublished, to publish the work"; and

specifically includes the sole right of dramatization (from an

"artistic," as well as other non-dramatic work), novelization, and

reproduction by mechanical means (though with compulsory license

provision as to reproduced music). A copyright may be assigned or

licensed "either wholly or partially, and either generally or subject to

limitations to any particular country, and either for the whole term of

the copyright or for any part thereof."

"Copyright or any similar right in any literary dramatic musical or

artistic work, whether published or unpublished," is expressly denied

"otherwise than under and in accordance with the provisions of this Act"

or other statutory enactment; and thus common law seems to be totally

abrogated. Hitherto common law property in an unpublished work has been

absolute and co-existed with statutory remedies up to publication, as

was strongly upheld in 1908 in Mansell _v_. Valley Printing Co. in the

English Court of Appeal. As to published works, the new code continues

the settled law reiterated as late as 1910 in Monckton _v_. The

Gramaphone Co., where Justice Joyce in the Chancery Division denied the

common law claim of the author of a song printed with prohibition of

mechanical production, on the ground that after publication there was no

{Sidenote: Foreign statutes}

The statutes of foreign countries are in general of similar scope,

though with variations of extent and phraseology in the several

countries. The broadest seems to be that of Siam, above cited,

translating common law rights into statutory privilege, though that

country also contradictorily limits copyright in books by a

manufacturing clause. Spain specifically protects works produced or

published by "any kind of impression or reproduction known now or

subsequently invented," as elsewhere quoted. France specifically gives

an author right to assign his property in whole or in part--a right

which is probably included in other countries under the general

construction of statutory rights in property.

{Sidenote: International provisions}

The international copyright convention, as modified at Berlin, does not

define the scope of copyright, but insures for authors the enjoyment of

such rights as the domestic laws accord to natives; but in its several

articles it makes specific provision as to representation, translation,

adaptation, mechanical reproduction, etc., as set forth in the chapter

on international copyright conventions.

Common law, or a crude equivalent for it, as enforced by the courts,

seems to extend copyright protection, in the absence of specific

legislation, in Montenegro, Egypt and Liberia, Honduras, the Dominican

Republic, and Uruguay, as formerly in Argentina.

SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE COPYRIGHTED

{Sidenote: Subject-matter in general}

The subject-matter of copyright should include, in the nature of things,

those products of invention, creations of the human brain, which are

realized and utilized immaterially through material records, and not, as

in the case of patents, materially through the material itself.

Copyrightable works, in brief, are those which appeal from the

imagination to the imagination, or in which intellectual labor combines

immaterial product into new form. What may be copyrighted specifically

and practically depends, under present conditions of law, upon the

statutory provisions, national or international, of the several nations

of the world.

{Sidenote: Classification}

The new American code gives the following classification of

copyrightable works:

"(Sec. 5.) That the application for registration shall specify to which

of the following classes the work in which copyright is claimed belongs:

"(a) Books, including composite and cyclopaedic works, directories,

gazetteers, and other compilations;

"(b) Periodicals, including newspapers;

"(c) Lectures, sermons, addresses, prepared for oral delivery;

"(d) Dramatic or dramatico-musical compositions;

"(e) Musical compositions;

"(f) Maps;

"(g) Works of art; models or designs for works of art;

"(h) Reproductions of a work of art;

"(i) Drawings or plastic works of a scientific or technical character;

"(j) Photographs;

"(k) Prints and pictorial illustrations:

"_Provided, nevertheless_, That the above specifications shall not be

held to limit the subject-matter of copyright as defined in section four

of this Act, nor shall any error in classification invalidate or impair

the copyright protection secured under this Act."

{Sidenote: Prints and labels excluded}

Prints or labels "not connected with the fine arts," but "designed to be

used for any other articles of manufacture," are subject only to

registration in the Patent Office in accordance with the act of June 18,

1874.

{Sidenote: All the writings of an author}

It is enacted (sec. 4): "That the works for which copyright may be

secured under this Act shall include all the writings of an author,"

thus linking the phraseology of the law with the provision in the

Constitution of the United States in which the word "writings" is used,

with the effect of construing that word by the classification above

cited.

{Sidenote: Component parts}

It is also enacted (sec. 3): "That the copyright provided by this Act

shall protect all the copyrightable component parts of the work

copyrighted, and all matter therein in which copyright is already

subsisting, but without extending the duration or scope of such

to the proprietor thereof all the rights in respect thereto which he

would have if each part were individually copyrighted under this Act."

{Sidenote: Compilations, new editions, etc.}

It is also enacted (sec. 6): "That compilations or abridgments,

adaptations, arrangements, dramatizations, translations, or other

versions of works in the public domain, or of copyrighted works when

produced with the consent of the proprietor of the copyright in such

works, or works republished with new matter, shall be regarded as new

works subject to copyright under the provisions of this Act; but the

publication of any such new works shall not affect the force or validity

of any subsisting copyright upon the matter employed or any part

thereof, or be construed to imply an exclusive right to such use of the

original works, or to secure or extend copyright in such original

works."

{Sidenote: Non-copyrightable works}

The provisions of the law regarding the subject-matter of copyright are

completed by the negative provision:

"(Sec. 7.) That no copyright shall subsist in the original text of any

work which is in the public domain, or in any work which was published

in this country or any foreign country prior to the going into effect of

this Act and has not been already copyrighted in the United States, or

in any publication of the United States Government, or any reprint, in

whole or in part, thereof: _Provided, however_, That the publication or

republication by the Government, either separately or in a public

document, of any material in which copyright is subsisting shall not be

taken to cause any abridgment or annulment of the copyright or to

authorize any use or appropriation of such copyright material without

the consent of the copyright proprietor."

{Sidenote: Government use}

It is not to be inferred from the provision as to Government

publications, that the United States has itself a right to use copyright

material without consent of the copyright proprietor. The sovereignty of

the nation is not to transgress the rights of private property, unless

in the necessary exercise of war or police powers, as the sovereign

state cannot take land over which it is theoretically sovereign from a

private owner except for public purposes and then only by condemnation

proceedings at law and with fair remuneration to the proprietor. No

right of eminent domain in respect to copyrights is asserted by the

United States, and the provision means only that material, otherwise

copyrightable, furnished by a public officer or otherwise to the

Government, becoming the property of the Government, is put freely at

the service of the people.

{Sidenote: "Author" and "writing" definitions}

The constitutional provision is thus given the broadest interpretation

in the act. In the narrow sense the dictionaries define "author" as "one

who composes or writes a _book_" (Webster), and "writing" variously as

"a record made by _hand_," "a production of the _pen_," "any expression

of thought in _visible_ words" (Century); "anything expressed in

_letters_" (Webster, Stormonth, Standard); "a written paper," "a legal

instrument" (Johnson); "a literary production" (Chambers); "forming by

the hand letters or characters on paper or other suitable substance"

(Bouvier's Law Dictionary); "words made _legible_ by any device," "a

document, whether manuscript or printed, as opposed to mere spoken

words" (Rapalje and Lawrence, Law Dict.); "expression of ideas by

visible letters" (Anderson's Dict. of Law). For years Massachusetts

voters cast a handwriting ballot, until the courts held that a printed

ballot fulfilled the "written ballot" requirement of the Massachusetts

constitution. But in the wider sense an author is "a creator, an

originator" (Webster, Standard), and a writing is the record or

expression of a thought or idea.

{Sidenote: Interpretation by Congress and courts}

Congress, upheld by the courts, had specifically included (law of 1870)

under "writings" in the Constitution a "statue," "statuary," "model,"

without requiring the artist to make a preliminary sketch (if that be

specifically a writing)--otherwise, as sculptors are not "inventors"

making "discoveries," they could not be protected at all; and in other

countries protection has been extended to oral delivery of an address

presumably but not necessarily written. It might be claimed, under a

restrictive interpretation of the Constitution, that only works

specifically relating to "science and useful arts" might be protected,

although literature and the fine arts are admittedly especial subjects

of copyright. While it is for the judiciary and not for the legislature

to construe or interpret the Constitution, the right of Congress to pass

laws based upon its understanding of the Constitution, subject to the

final decision of the federal courts, has not been challenged. And the

code of 1909 by its classification (sec. 5) and its inclusive clause

(sec. 4) is most comprehensive in this respect.

{Sidenote: Supreme Court decisions}

The U. S. Supreme Court, in 1884, in the decision of Burrow-Giles Lith.

Co. _v._ Sarony, extending the principles of the copyright act to cover

photographs, said through Justice Miller: "By 'writings' is meant the

literary productions of those authors, and Congress very properly has

declared these to include all forms of writings, printing, engraving,

etching, etc., by which the ideas in the mind of the author are given

visible expression. The only reason why photographs were not included in

the extended list of 1802 is probably that they did not exist, as

photography as an art was then unknown." It seems evident that the

phrase "visible expression" as used in this decision was intended to

give a broad definition and not to narrow the definition by the

exclusion, for instance, of "audible expression," as otherwise the

_performance_ of a drama or of a musical composition could not be

included under copyright protection. This view is confirmed by the later

decision of the same court, in 1899, in Holmes _v._ Hurst: "It is the

intellectual production of the author which the copyright protects, and

not the particular form which such production ultimately takes; and the

word 'book' is not to be understood in its technical sense as a bound

volume, but any species of publication which the author selects to

embody his literary product."

{Sidenote: Originality and merit}

The courts are disposed to extend copyright to any work involving

intellectual labor or brain skill, without emphasizing originality or

literary merit. In the important case of Walter _v._ Lane, in which a

_verbatim_ report of Lord Rosebery's speeches was protected, by decision

of the House of Lords, in 1900, Lord Chancellor Halsbury said: "Although

I think in these compositions (_i. e._ the work of the stenographer)

there is literary merit and intellectual labor, yet the statute seems to

me to require neither--nor originality either in thought or language ...

the right in my view is given by the statute to the first producer of a

book, whether that book be wise or foolish, accurate or inaccurate, of

literary merit, or of no merit whatever."

{Sidenote: "Book" definitions}

The word "book" covers the great body of copyright property, and has

been many times the subject of judicial construction giving the most

comprehensive meaning to the term. The English judges early held that

protection "could not depend upon the form of the publication"; "that a

composition on a single sheet might well be a book within the meaning of

the legislature"; and that "any composition, whether large or small, is

a book within the meaning of this act." The English law of 1842

afterward specifically construed the word "book" "to mean and include

every volume, part or division of a volume, pamphlet, sheet of

letterpress, sheet of music, map, chart or plan, separately published."

The law of the United States makes no definition of the term, except by

specifically including as books "composite and cyclopaedic works,

directories, gazetteers, and other compilations"; but our judges have

agreed with the English view, Judge Thompson holding, in 1828, in

Clayton _v._ Stone, that a "book" may be printed "only on one sheet,"

and that "the literary property intended to be protected by the Act is

not to be determined by the size, form or shape ... but by the

subject-matter," and Judge Leavitt, in 1862, in Drury v. Ewing, that a

diagram for cutting dresses, with directions, printed on a single sheet,

being "the product of thought and mental toil," was a "book" within the

benefit of the law.

{Sidenote: Inclusions adjudicated}

In fact, though all English and American statutes have been avowedly for

"the encouragement of learning" and "the progress of science and useful

arts," the courts have construed the laws to cover in the widest sense

any "useful book." The courts have indeed denied copyright protection

only to works having absolutely no literary quality, such as

advertisements (unless they contain original literary matter) and

advertising cuts, labels, blank books, or blank forms. Even booksellers'

and other trade catalogues, having descriptive notes or distinctive

arrangement and combination, can be copyrighted. Compilations of

existing materials, from common sources, arranged and combined in an

original and useful form, receive the same protection as wholly original

matter. Drone schedules English or American judicial constructions

extending this principle to: (1) general miscellaneous compilations; (2)

annotations consisting of common materials; (3) dictionaries; (4) books

of chronology; (5) gazetteers; (6) itineraries, road and guide books;

(7) directories; (8) maps and charts; (9) calendars; (10) catalogues;

(11) mathematical tables; (12) a list of hounds; (13) abstracts of

titles to lands; and collections of (14) statistics, (15) statutory

forms, (16) recipes, and (17) designs--several of which classes are now

specifically included in the new American statute. Later decisions have

confirmed several of these categories and have specified also (18)

trotting records; (19) racing charts; (20) newspaper reports of public

speeches; (21) telegraphic codes; (22) mining reports; (23) a

tradesman's alphabetical list of wares; (24) a list of public documents;

(25) mathematical calculations; (26) legal forms; (27) an application

form for membership; (28) complications of railroad time-tables; (29)

commercial circulars, protected by a Canadian decision; (30) school

registers, and (31) stud book list of horses.

{Sidenote: Exclusions adjudicated}

On the other hand, the courts have declined to include as proper

subjects of copyright (a) methods or plans, as for compiling

credit-ratings or systems, as in the case of (b) shorthand, (c) trading

stamps or coupons as described in a copyrighted advertising pamphlet, or

(d) of letter-file indexes; (e) a sleeve pattern chart; (f) the face of

a barometer; (g) a railway ticket designed for punching; (h) a day's

sporting tips; (i) blank books; or (j) blank forms, as a cricket

score-card; and (k) monograms.

{Sidenote: Inclusions defined}

In the new Rules and Regulations of the Copyright Office promulgated as

approved by the Librarian of Congress in 1910 as Bulletin No. 15, it is

said as to books:

"(4, _a_) _Books._--This term includes all printed literary works

(except dramatic compositions) whether published in the ordinary shape

of a book or pamphlet, or printed as a leaflet, card, or single page.

The term 'book' as used in the law includes tabulated forms of

information, frequently called charts; tables of figures showing the

results of mathematical computations such as logarithmic tables;

interest, cost, and wage tables, etc., single poems, and the words of a

song when printed and published without music; librettos; descriptions

of moving pictures or spectacles; encyclopaedias; catalogues;

directories; gazetteers and similar compilations; circulars or folders

containing information in the form of reading matter other than mere

lists of articles, names and addresses, and literary contributions to

periodicals or newspapers."

{Sidenote: Exclusions defined}

On the other hand, definitions are made negatively that:

"(5) The term 'book' can not be applied to--

"Blank books for use in business or in carrying out any system of

transacting affairs, such as record books, account books, memorandum

books, diaries or journals, bank deposit and check books; forms of

contracts or leases which do not contain original copyrightable matter;

coupons; forms for use in commercial, legal, or financial transactions,

which are wholly or partly blank and whose value lies in their

usefulness and not in their merit as literary compositions.

"Directions on scales, or dials, or mathematical or other instruments;

puzzles; games; rebuses; labels; wrappers; formulae on boxes, bottles,

and other receptacles of articles for sale or meant to accompany such

articles.

"Advertisements or catalogues which merely set forth the names, prices,

and places where articles are for sale.

"Prefaces or other introductory matter to works not themselves entitled

to copyright protection, such as blank books.

"Calendars are not capable of registration as such, but if they contain

copyrightable reading matter or pictures they may be registered either

as 'books' or as 'prints' according to the nature of the copyrightable

matter."

The Rules also make the following negative definitions:

"(12) No copyright exists in toys, games, dolls, advertising novelties,

instruments or tools of any kind, glassware, embroideries, garments,

laces, woven fabrics, or any similar articles."

The definition of other classes of subject-matter given in the new Rules

and Regulations of the Copyright Office, including that of maps, will be

found in the chapters on dramatic and musical copyright and on artistic

{Sidenote: Blank books}

In the case of Everson _v._ Young, then Librarian of Congress, Judge

Cole, of the Supreme Court of the District of Columbia, in 1889, refused

a mandamus against the copyright officer while admitting that "the

librarian had no discretion" on the ground that mandamus "will not be

used to order a vain thing to be done" and that a blank book "containing

not a single English sentence" is not a subject of copyright.

"The copyright statutes," as is said in Circular Letter no. 32 of the

registered in this office do not mention blank forms or blank books. The

United States courts which have jurisdiction in cases arising under the

articles _for use in themselves_ are not subject to copyright, and hence

are not registrable in this office. A bill was introduced in Congress in

1904 proposing to extend the protection of the copyright law to

vouchers, certificates, or other business forms, wholly or partly

printed. But the measure was not favorably acted upon and did not become

law." This exclusion does not refer to such publications as an insurance

policy or a legal document, on which blank spaces are to be filled in,

which are accepted as proper subject-matter for copyright by the

{Sidenote: Combinations and arrangements}

The copyright under certain categories above scheduled may be in the

combination and arrangement only, or it may be also in any original

material included with other material. Quantity is not an essential

element in copyright so much as "substantial importance." An English

court protected a passage of only sixty words.

{Sidenote: Advertisements}

In respect to advertisements and advertising matter as such, the new

American code is silent, and court decisions, mostly English, have been

contradictory. In 1863 Vice-Chancellor Page Wood, in Hotten _v._ Arthur,

"found no difficulty" in deciding that a catalogue of old books was a

subject of copyright "notwithstanding that the catalogues were for the

purpose of advertising the plaintiffs' stock-in-trade, and were not in

themselves offered for sale"; but in 1872 Lord Romilly, in Cobbett _v._

Woodward, made an absolutely contrary decision, saying: "But at the

last, it comes round to this, that there is no copyright in an

advertisement. If you copy the advertisement of another, you do him no

wrong in doing so, unless you lead the public to believe that you sell

the articles of the person whose advertisement you copy." This last

decision was definitely overruled and in 1882, in Maple _v._ Junior Army

& Navy Stores, the English Court of Appeal, in protecting an advertising

catalogue consisting mostly of engravings of furniture, said through

Justice Jessel: "The case which has done all the mischief is Cobbett

_v._ Woodward.... I think that is not law. I am not aware that the use

to which a proprietor puts his book makes any difference in his rights."

In 1906, in Davis _v._ Benjamin, the Chancery Division held a sheet of

advertising illustrations with headlines and prices a book.

{Sidenote: Undistinctive advertising not protectable}

An advertisement _per se_ of an ordinary character, the courts may

decline to protect, either on behalf of the advertiser or of the

publisher of the periodical in which it appears; thus possibly ordinary

advertisements might be copied by another paper, to give an inflated

impression of its advertising patronage unless enjoined for intent to

deceive. On the other hand, characteristic advertisements, as those for

which department stores pay large sums to advertisement writers, could

doubtless be copyrighted to prevent their use by rival firms, though the

advertiser would scarcely be interested in preventing the wide diffusion

of his advertisement with his name by its gratuitous publication

elsewhere. Some street-car advertisements, however, bear copyright

notices. Whether the proprietor of a copyrighted periodical could

prevent the use of a copyrightable advertisement not protected by

specific copyright, in a rival newspaper, would be questionable, though

a publisher might be granted an injunction for the combination or

arrangement of copyrightable advertisements in his periodical. In 1892,

in Lamb _v._ Evans, Lord Justice Lindley, in the English Court of

Appeal, said: "I do not see myself the difficulty in the publisher's

having a copyright in a sheet of advertisements. I do see a difficulty

in his having a copyright in one advertisement, because, as Mr. Justice

Chitty pointed out, that might prevent the advertiser from republishing

his advertisements in another paper, which is absurd." An advertisement

appearing in several publications, some of them not copyrighted, could

only be protected in these latter by specific copyright notice, even

though covered in the copyrighted periodicals as a component part. The

advertisements, but it has declined in a recent instance to accept for

registry recipes printed on tin and inserted in packages of flour to

advertise the flour, which could scarcely be accepted as a "book" or

other copyrightable matter.

{Sidenote: New editions}

New editions are protected under the American code as new works (sec.

6), to the extent that they include new material; and this is in accord

with the whole trend of court decisions. In 1852 Vice-Chancellor

Kindersley stated the doctrine that "if a man prints a second edition,

not being a mere reprint of the first edition, but containing

considerable and material alterations and additions, _quoad_ those, it

is a new work." So in 1870, in Black _v._ Murray & Son, Lockhart's

edition of Scott's "Border Minstrelsy" was protected, on Lord President

Inglis' decision, to the full extent of the notes: "Questions of great

nicety and difficulty may arise as to how far a new edition of a work is

a proper subject of copyright at all; but that must always depend upon

circumstances. A new edition of a book may be a mere reprint of an old

edition, and plainly that would not entitle the author to a new term of

the new edition of a book may be so enlarged and improved as to

constitute in reality a new work, and that just as clearly will entitle

the author to a copyright running from the date of the new edition." A

few colorable alterations or unimportant notes may not justify a new

change of a single word in "Glenallan's Earl" authorized a copyright for

the new edition, though another law lord differed, and the case was

decided on other grounds. It is doubtful indeed whether there can be

protection of a single word, a question which arose in the _Belgravia_

case, unless having association in the public mind as a trade-mark. In

any event, the copyright on a new edition, whether made by rewriting,

extending, condensing, annotating, or otherwise altering, runs

independently of the term of the original or any other edition, covers

only the new parts, and cannot prevent the issue by others of the

original or any other edition on which copyright has expired. This is

made entirely clear in the new code (sec. 6).

{Sidenote: Copyright comprehensive}

"A book must include every part of the book; it must include every

print, design, or engraving which forms part of the book, as well as the

letterpress therein, which is another part of it," according to the

ruling decision of Vice-Chancellor Parker, in 1852, in the English case

of Bogue _v._ Houlston. To the same effect Drone says: "The copyright

protects the whole and all the parts and contents of a book: when the

book comprises a number of independent compositions, each of the latter

is as fully protected as the whole." The copyright under the new law

protects (sec. 3) "all the copyrightable component parts of the work

copyrighted." The practice of some publishers in copyrighting a magazine

and also specific articles or engravings seems, therefore, a work of

doubtful expediency. The new law specifically gives to the proprietor of

"composite works or periodicals" (sec. 3) "all the rights in respect

thereto which he would have if each part were individually copyrighted."

{Sidenote: Non-copyrightable parts excepted}

On the other hand, copyright cannot extend to any part of a book not

subject in itself to copyright, even under the old law, and the new law

(sec. 3) is perfectly plain. The general copyright is not, however,

vitiated as to copyrightable portions by its seeming to cover

non-copyrightable portions, as was held by Lord Kenyon, in 1801, in Cary

_v._ Longman. But when copyright is claimed on a work partly composed of

uncopyrightable matter the courts may require the claimant, on

interrogatories, to designate which parts are and which are not

original. "If the parts cannot be separated," says Drone, "it would seem

that copyright will not vest in any of it." The new code is to the same

effect.

{Sidenote: Book illustrations}

The application of these principles to the protection of a "new edition"

which is new only with respect to added illustrations, is very simple.

It is only the new illustrations which can be copyrighted, and it is

matter for question whether the endeavor to protect an edition of

unaltered text by a general copyright notice which really covers only a

few added illustrations would not be a false use of the copyright

notice. A proper copyright notice on an illustrated book will, however,

protect the illustrations against indirect as well as direct

reproduction; thus in 1908 in Harper _v._ Kalem, Judge Lacombe in the U.

S. Circuit Court in New York protected certain illustrations in "Ben

Hur" against their reproduction in moving pictures.

{Sidenote: Translations}

In respect to translations, the new American law is specific, not only

in its mention of "translations" (sec. 6), but in giving (sec. 1, b) the

exclusive right "to translate the copyrighted work into other languages

or dialects, or make any other version thereof, if it be a literary

work." The early American precedent was the case of "Uncle Tom's cabin,"

in 1853, in which Mrs. Stowe had copyrighted not only the original work,

but a German translation which she had provided; Justice Grier in the U.

S. Circuit Court held that she could not recover against one Thomas who

was issuing another German translation, since it was not "_copies_ of

her _book_." This case was previous to the statute permitting authors to

reserve the right of translation, and the new code as above cited fully

protects translations. The author of a copyrighted work thus has the

exclusive right to translate his work, or license its translation, into

any other language, and under such a license the translator with the

consent of the author would have the right to copyright his translation.

Where the author employs a translator for hire, the copyright in the

translation may be secured by the author of the original work, but under

ordinary circumstances the copyright in the translation would be secured

by or on behalf of the translator. In case of contest on this point, the

issue would be a question of contract, and in the absence of contract or

specific assent the courts would doubtless base their decisions on the

circumstances of the case so far as they could be held to imply

contract. The inclusion of the notice of copyright of the original work

on a translation, without specific copyright of the translation itself,

would be held, it seems probable, to protect the translation under the

author's original copyright; but this would limit the copyright term on

the translation to the copyright term of the original work, and for this

and other reasons a specific copyright on each translation is desirable,

in which case the notice of copyright of the original work need not be

given on the translation.

{Sidenote: Translator's rights}

In the case of the translation of a copyright work, the author of the

original work has the right to prevent other translations, but the

translator has no such right to prevent translation by another

translator except as exclusive right to translate is conveyed or implied

to him by the author of the original work. A work in the public domain,

as a non-copyright work or a work on which copyright has expired, may be

translated by any one and the translation copyrighted, but such

translator would not have the right to prevent translation by another

translator.

{Sidenote: English practice}

In England, while the right of translation may be reserved under the

international copyright act by notice on the title-page, an English

author could reserve his right of translation only by providing such

translation, but the new code gives the full right.

{Sidenote: Translations in international relations}

The American provisions as to translations apply with especial

importance to international relations. "The original text of a book of

foreign origin in a language or languages other than English" is

copyrightable in America without manufacture here; and such a work, duly

copyrighted, can only be translated into English or any other language

by authority of the foreign author or his assigns, and such translation

in English or any other language can be copyrighted only when

manufactured in this country as provided in the act. If the original

text of a foreign work is not duly copyrighted under the American law,

then translation is open to any one and copyright can be secured only

for the particular translation copyrighted, as above stated, and this

cannot prevent independent translation into the same or any other

language. Thus, a German original duly copyrighted may not be translated

into English, French, or any other language without authority of the

instance, from a French translation of the copyrighted work; but any

number of translations of the copyrighted German work into English or

any other language may be separately copyrighted under the American law,

subject to the manufacturing clause, if duly authorized by the copyright

proprietor, and each translator could only prevent the copying of his

particular translation or the translation of his own version into

another language.

{Sidenote: Foreign translators}

A translation can be copyrighted by a translator only in case he is a

citizen of a country with which the United States has copyright

relations or is a resident of this country; thus a Swedish translation

by a citizen of Sweden not resident in the United States could not be

copyrighted unless the translator had been "employed for hire" by the

author or proprietor of the original copyrighted work. If the entire

of Sweden, not a resident in the United States, it would seem to follow

that the latter could not copyright a translation though he might retain

the right to prevent unauthorized translation under the general

independent translation made by a Swedish citizen not resident here, the

general notice of copyright of the original work might be utilized to

protect the translation, but in such case copies not manufactured in the

United States could not be imported into this country; while if such

authorized translation bore no copyright notice and were imported into

the United States by the author or with his consent, it is probable that

this translation, but not the original work or another translation from

either, would be freed from copyright protection.

{Sidenote: Abridgments}

In respect to abridgments, these are specifically mentioned (sec. 6) as

copyrightable works, and by inference from this clause and the provision

(sec. 1) giving an author the exclusive right to "make any other

version," the author or proprietor of a literary work may prevent

abridgment of his work. The courts had held to precedents which the best

writers, such as Curtis, Drone and Copinger, declare to be contradictory

to the true principles of copyright law. In 1740 Lord Hardwicke,

deciding against a mere reprint, "colorably shortened only," of Sir

Matthew Hale's "Pleas of the Crown," declared that he would not restrain

"a real and fair abridgment," and in 1774 Lord Chancellor Apsley, after

consultation with Blackstone, held that an abridgment of Hawkesworth's

"Voyages," involving understanding and skill, was not plagiarism or a

American case of Story's "Commentaries," Story v. Holcombe, in 1847, in

the U. S. Supreme Court, Justice McLean, while expressing his own

opinion that "an abridgment, if fairly made, contains the principle of

the original work, and this constitutes its value," added, "but a

contrary doctrine has long been established in England ... and in this

country the same doctrine has prevailed. I am, therefore, bound by

precedent, and I yield to it in this instance, more as a principle of

law than a rule of reason or justice." Similarly, in Lawrence v. Dana,

in 1869, Judge Clifford, in the U. S. Circuit Court, declared that "an

abridgment ought to be regarded as an infringement ... but the opposite

doctrine has been too long established to be considered open to

controversy." The language of the new code frees the courts from these

precedents and settles the American law.

{Sidenote: Compilations}

In respect to compilations, these are protected by specific mention

(sec. 6) in the new law, and also by the classification as books (sec.

5, a) of "composite and cyclopaedic works, directories, gazetteers, and

other compilations." Compilations can be protected even if consisting

solely of non-copyright material, "because of the originality,

arrangement, selection, abridgment, or amplification of such simple

material," as stated in the Scotch Court of Session, in the case of

Lennie v. Pillans in 1843, with which later English and American

decisions are in accord.

{Sidenote: Collections}

Collections are copyrightable as compilations or otherwise, and where

the use of copyrighted poems or other copyright material is permitted,

these are protected by general copyright notice on the collection.

Permission to use a copyrighted poem, for instance, in a specified

collection does not grant a license to use it in other form, though it

could be used in a combination of such collections. In 1896, in Gabriel

_v._ McCabe, Judge Grosscup in the U. S. Circuit Court in Illinois held

that the licensor could not prevent the use of a song licensed for a

particular collection in a combination of this collection in another

collection or in an abridged edition of the collection, though an

"abridgment" involving a reprint of the song by itself would have been

an unfair use of the license.

{Sidenote: Titles}

As to titles, which are not mentioned in the new code, both English and

American court decisions are broadly and generally, though with some

exceptions, to the effect that there is no copyright protection for the

title of a book _per se_, but it may be considered an essential part of

the book. Judge Shepley held, in 1872, in his elaborate discussion of

the question of titles in Osgood _v._ Allen as to the periodical _Our

Young Folks_, that "the right secured is the property in the literary

composition--the product of the mind and genius of the author--and not

in the name or title given to it. The title does not necessarily involve

any literary composition; it may not be, and certainly the statute does

not require that it should be, the product of the author's mind.... It

is a mere appendage, which only identifies, and frequently does not in

any way describe, the literary composition itself.... If there were no

piracy of the copyrighted book there would be no remedy ... for the use

of a title which could not be copyrighted independently of the book."

Judge Lacombe accepted this view in his decision of the "Trilby" case,

cited beyond.

{Sidenote: Changed titles}

Conversely, the publication of a copyrighted work under a changed title,

with the original notice of copyright, would probably not invalidate the

prevent the copyright certificate being _prima facie_ proof; and change

of title is a practice altogether reprehensible. A new copyright of the

same book changed only in title, with a new copyright notice of later

date, could scarcely be construed as a new edition and in the absence of

the original copyright notice the copyright might thus be abandoned or

forfeited and the work be dedicated to the public.

{Sidenote: General titles}

General titles cannot in any way be protected. The publishers of the

"_Bibliographie Universelle_," in France, the "Post Office Directory,"

in England, and of "Irving's Works," in America, were all defeated in

attempts to prevent the use of those titles.

{Sidenote: Titles as trade-marks}

Titles are rather to be considered as trade-marks, which may be

registered in the United States under the Trade-Mark acts of 1905-6, and

protected by the statutory penalties, or may be protected on general

principles of equity. This doctrine was early upheld by the English

courts, especially in regard to periodicals, as in the titles of _Bell's

Life_ and the _London Journal_, and again came before the courts in the

important case of Weldon _v._ Dicks, as to the specific title of the

novel "Trial and triumph," in which case, in 1878, Vice-Chancellor

Malins enjoined quite another book under the same title, though the

title was chosen in ignorance of the first book and in entire good

faith. So, also, as to the title "Splendid misery," used by Miss Braddon

in 1879, Sir James Bacon, in the Chancery suit of Dicks _v._ Yates, in

1881, was inclined to support the claim of C. H. Hazelwood, who had used

the title in 1874, until it was shown that a forgotten novelist named

Purr had used it in 1801, so that it had become, in a measure, common

property.

{Sidenote: "Chatterbox" cases}

In the several American "Chatterbox" cases, Judge Wheeler's early

decision restraining the use of this "name or word, or any name or word

substantially identical therewith," in or upon any juveniles of the

general character of the English book of that name, was followed by

Judge Shipman, in 1887, in Estes _v._ Worthington, in the U. S. Circuit

Court in New York, who also held that the word "Chatterbox" had become

"a well-known trade-mark designating a well-known series," published in

a distinctive style and enjoined the rival publication, simulating the

external style, but of different contents. These decisions previous to

1891, resting on principles of trade-mark and not of copyright,

indirectly assured a measure of international copyright.

{Sidenote: Other title decisions}

In 1888 the publishers of _Life_ and of "The good things of _Life_"

obtained an injunction from the N. Y. Supreme Court, in Mitchell &

Miller _v._ White & Allen, to restrain the publication of "The spice of

life," as seemingly a continuation or counterpart of the authorized

collection of extracts from that periodical. In 1904, in Gannet _v._

Rupert, Judge Coxe in the U. S. Circuit Court of Appeals in New York, on

suit of the publishers of _Comfort_, restrained the use of the title

_Home Comfort_ on a rival periodical "not as a case of unfair

competition" but as "founded on a technical common law trade-mark"; and

characterized the name as "a badge of origin and genuineness. It is as

much a part of the proprietor's property as his counting room or

printing press. A rival publisher has no more right to appropriate the

name of its owner,"--despite the defence that _Comfort_ is "a standard

English word not fanciful or manufactured." This defence had precedent

in the doubt expressed by Lord Cairns in 1867 in the _Belgravia_ case,

cited beyond, as to copyright protection of a single word, and in the

decision of Judge Curtis in Isaacs _v._ Daly, in the N. Y. Superior

Court in 1874, as to the drama "Charity," that "the use of the word

'Charity' as a designation for any work of art or literature cannot

ordinarily be monopolized by any one person"; but under trade-mark law a

single word associated by registry or in the public mind with a

well-known product, may undoubtedly be protected as against misleading

use of the word otherwise. The courts will go even farther in preventing

the use of a title by another person with intent to deceive or to

utilize the reputation of another work or author, as a fraud upon the

public, or as unfair competition, without reference specifically to

trade-mark principles. Thus Judge Newburger of the N. Y. Supreme Court,

in 1910, in Eliot and Collier _v._ Jones and the Circle Publishing

Company, restrained the issue under the title "Dr. Eliot's five-foot

shelf" of books by the defendants of a set of books selected by and

issued under the authority of President Eliot of Harvard, under

arrangement with the co-plaintiff. The English rulings are to the like

effect, that while a title has no copyright protection except as part of

a book, the use of a title to attract purchasers on the supposition that

they are getting another book previously known by that title is a fraud

punishable at common law. Further citations of cases on these points are

given in the chapter on infringement.

{Sidenote: Projected titles}

There can be no claim to protection for the title of an unpublished

book, as a trade-mark or otherwise, just as there can be no copyright in

a projected book. This question was elaborately discussed in the leading

English case of Maxwell _v._ Hogg, in 1867, in relation to the magazine

_Belgravia_, when the rule was laid down that no matter what expenditure

had been made or advertising done, a title was not protectable previous

to its association with a work actually before the public. Judge

Shepley, in 1872, pointed out that "there is no such thing as property

in a trade-mark as an abstract name," for a trade-mark simply shows that

certain goods "were manufactured by a certain person." Nor can an

abandoned title, in the case of a periodical, be held against a person

starting a new periodical of that name, providing it does not purport to

be a continuation of the old, according to a French case quoted by

English authorities.

{Sidenote: Projected works not copyrightable}

There can be no statutory copyright in a book or other work projected

and not yet prepared, despite a very general notion that under the old

law a projected book could be protected by registering a title and

depositing a title-page of an unwritten or unpublished book. There is

nothing in copyright law corresponding to the _caveat_ in patent law.

This is not in conflict with the protection of an unpublished work at

common law or in equity referred to in the new American code (sec. 2) or

the provision in the new law (sec. 11) permitting the registration of "a

lecture or similar production or a dramatic or musical composition" or a

work of art, before publication, with the deposit of a complete copy or

identifying print.

{Sidenote: Immoral works}

There can be no copyright in an immoral book, and Lord Eldon, in Southey

_v._ Sherwood, carried this doctrine so far as to deny the common law

right of an author in a non-innocent manuscript, because there could be

no right to hold what there was no right to sell. His opinion, resulting

in the wide sale of a book which the author desired to suppress, has

been severely criticised by later authorities. In the American case of

Broder _v._ Zeno Mauvais Music Co., Judge Morrow, in the U. S. Circuit

Court in California, in 1898, held that as a song which the plaintiff

sought to protect contained indecent words, it was not entitled to

protection under the copyright law. There can be no copyright in

blasphemous, seditious, or libelous books; but though this rule was very

strictly enforced by English judges a century ago, the later courts

hesitate to rule strictly on this point, lest the rule be perverted to

sectarianism or despotism. There can be no copyright in books involving

fraud, as those which spuriously obtain salable value by being

represented to be the work of writers who did not write them, or to

contain matter which they do not contain; but this rule does not extend

to books under assumed names or innocently pretending to be what they

are not, as when Horace Walpole's "Castle of Otranto" was put forward as

a translation from the Italian.

{Sidenote: Periodicals}

In addition to the inclusion of "composite works," the new American law

specifically covers (sec. 5, b) "periodicals, including newspapers," and

by other provisions of the law above cited, this covers "all

copyrightable component parts." It is further provided (sec. 3) that

"the copyright upon composite works or periodicals shall give to the

proprietor thereof all the rights in respect thereto which he would have

if each part were individually copyrighted under this Act." While the

American code does not specifically provide as to the separate rights of

authors in articles in periodicals or composite works, which must

therefore be a matter of contract, or of practice or precedent implying

contract, provision for separate copyright is implied in a clause (sec.

12) requiring the deposit of only one copy instead of two in the case of

"a contribution to a periodical, for which contribution special

registration is requested"--although the specific article is fully

protected, as indicated above, by the general copyright.

{Sidenote: Definition of periodicals}

The new Rules and Regulations of the Copyright Office define periodicals

as follows:

"(6) This term includes newspapers, magazines, reviews, and serial

publications appearing oftener than once a year; bulletins or

proceedings of societies, etc., which appear regularly at intervals of

less than a year; and, generally, periodical publications which would be

registered as second class matter at the post office."

{Sidenote: Periodicals under manufacturing clause}

Periodicals, as well as books, are subject to the manufacturing clause

(sec. 15), but affidavit is not required, and the importation of "a

foreign newspaper or magazine, although containing matter copyrighted in

the United States printed or reprinted by authority of the copyright

proprietor," is not prohibited (sec. 31, b), "unless such newspaper or

magazine contains also copyright matter printed or reprinted without

such authorization"--but these and other conditions are treated in later

chapters.

{Sidenote: Periodicals copyrightable by numbers}

The law provides (sec. 19) in the case of a periodical, that the notice

of copyright may be "either upon the title-page or upon the first page

of text of each separate number or under the title heading," "provided

that one notice of copyright in each volume or in each number of a

newspaper or periodical published shall suffice." This implies that each

issue of a periodical must be separately copyrighted as though a

separate work, although the title may be registered as a trade-mark and

possibly protected in this way. A daily newspaper may thus be

copyrighted day by day at a cost of $365 per year, so as to protect all

its original material of substantial literary value. This was done in

fact under the American law previous to 1909, though periodicals were

not specifically mentioned; a daily price-list of the New York Cotton

Exchange was so entered day by day, but the question of maintaining such

a copyright under the old law seems never to have been tested in the

courts, and New York dailies copyrighted their Sunday cable letters

separately.

{Sidenote: News}

In respect to news, there is no provision in the new code. A bill to

protect news for twenty-four hours was at one time before Congress, but

was never passed. There is, therefore, no copyright protection for news

as such, but the general copyright of the newspaper or a special

containing news. Thus the New York _Herald_ copyrighted without question

Dr. Cook's Arctic dispatches, and the question as to the copyright by

the New York _Times_ of Commander Peary's dispatches describing his dash

for the pole hinged solely on the question of ownership or authority to

not prevent publication by other newspapers of the news that Cook and

Peary claimed to have reached the North Pole, at stated dates and under

stated circumstances, though their own form of statement of the facts

could not lawfully be copied except within "fair use."

In 1892 Justice North in the English Court of Chancery, in Walter _v._

Steinkopff, said that "although it is sometimes said that there is no

language or mode of expression by which information is conveyed." The

English courts went further in two actions brought by the Exchange

Telegraph Co., 1895-97, in the first of which Gregory & Co. were

restrained from using information furnished to subscribers first as

unpublished matter before publication, second after publication because

of copyright on the publication, and third as "unfair competition." In

1902, in Nat. Tel. News Co. _v._ West. Union Tel. Co., the U. S. Circuit

Court of Appeals protected news on ticker tapes, and in 1910, in Press

Assoc. _v._ Reporting Agency, the English Chancery Division protected

election reports on the last-named ground alone.

{Sidenote: British Periodicals}

The statutes of Great Britain have hitherto provided that a work

published in parts or a periodical may be fully protected by copyright

entry of the first part; the new code covers newspapers and periodicals

generally as collective works. When the London _Times'_ memoir of

Beaconsfield was reprinted as a penny pamphlet, the _Times_ brought suit

as a matter of common law right, but the judge held that a newspaper was

copyrightable under the statute, and therefore that a common law suit

could not hold.

{Sidenote: Oral works}

The American law now specifically protects oral works by including in

the classification (sec. 5, c) "lectures, sermons, addresses, prepared

for oral delivery," and by assuring (sec. 1, c) exclusive right "to

deliver or authorize the delivery of the copyrighted work in public for

profit if it be a lecture, sermon, address, or similar production." The

phrase "similar production" and the spirit of the statute suggest that,

though the manuscript of a book cannot be copyrighted prior to

publication, a "reading" from an unpublished book, as a chapter, scene,

or poem, might be registered and protected for oral delivery before

publication; and the Copyright Office will make such registry on such

application. The former law made no specific provision, but the courts

seemed disposed to protect a lecturer on the common law ground that the

lecture read is not published by reading, and can be controlled as a

manuscript. In the application of common law doctrine to extemporaneous

or other oral deliveries, the question of implied contract between the

speaker and his auditors enters, and the trend of court decisions is

that a hearer who has purchased or obtained a ticket, may make notes for

his own use but may not publish them for profit. In the leading English

case of Abernethy _v._ Hutchinson, in 1825, Lord Chancellor Eldon

protected Dr. Abernethy against the publication of notes of unwritten

medical lectures, evidently obtained through a student hearer.

{Sidenote: Newspaper reports}

Newspapers have, however, in practice freely republished lectures, and

probably even under the present law the courts would permit, unless

report was specifically and entirely forbidden by the speaker, a

reasonable report but not a _verbatim_ reproduction of the address, as

within the bounds of "fair use." The publication of an unauthorized

report by one newspaper would not justify another newspaper in copying

the report without consent of the copyright proprietor on the ground of

publication, for such unauthorized publication cannot deprive the

extemporaneously or even from written manuscript without registering the

address as an unpublished work or taking other precautions, it is

probable that the courts would protect his rights at common law; but it

would be hazardous not to take advantage of the statute.

{Sidenote: Lectures in England}

Lectures have hitherto been protected in England in case the lecturer

gave notice of reservation in writing two days in advance to two

justices at the place of reading, but this complicated proviso caused

speakers to rely rather on the common law doctrine that oral delivery is

not publication. The new British code specifically provides that

delivery is not publication, but permits newspaper report unless the

speaker prohibits such report by notice posted near the main entrance

and except during public worship near the speaker's position; "newspaper

summary" within "fair dealing" is expressly permitted.

{Sidenote: Letters}

Letters are not specified either in English or American statutes under

manuscript, the right to publish or copyright remaining with the author

while living, though the material letter, its paper and ink, has passed

to the receiver. Thus in 1741 Pope prevented Curl, an English

bookseller, from republishing his letters to Swift, and in 1774, in

Thompson _v._ Stanhope, Lord Chesterfield prevented his son's widow from

publishing letters which he had made a gift to her. Letters, however,

are copyrightable by themselves or as part of a book; and the writer may

protect a letter against unauthorized publication by himself publishing

and copyrighting it. The U. S. Supreme Court in 1841, in Folsom _v._

Marsh, enjoined the republication of letters of Washington, published by

authority in Sparks's "Life of Washington," through Justice Story, who

said: "The author of any letter or letters, and his representatives,

whether they are literary letters or letters of business, possess the

sole and exclusive copyright therein; and no person, neither those to

whom they are addressed, nor other persons, have any right or authority

to publish the same." But as manuscripts posthumously published, the

Macmillan _v._ Dent, in 1906, the English Court of Appeal held, where

the owners of letters of Charles Lamb had sold the copyright to certain

publishers, these could not be republished by another who had later

bought the material letters even under the authorization of the

representative of Lamb's heirs. In Philip _v._ Pennell, Whistler's

executrix was denied an injunction to prevent the use of biographical

information obtained from the receivers of letters. But _obiter dicta_

indicated that the courts may grant to the writer's representatives an

injunction against publication or misuse. The laws of some countries

specifically permit the publication of letters in the interest of

justice. Unless the letter is of the nature of privileged

correspondence, the courts can probably require the production of a

letter in court, and in fact do subpoena telegraph companies to produce

the originals or transmittal records of telegrams in court, and thus

make them _quasi_ public property. The sale of a manuscript letter

cannot authorize a vendee to publish it without consent of the writer,

and the receiver of a letter is perhaps bound to keep a letter private

or destroy it, if so required by the writer, but this is a right

difficult of enforcement if not doubtful _in esse_. The receiver of a

letter has probably a right to destroy it at his will, unless the writer

has required its return to him.

The subject-matter of copyright in respect to musical and dramatic

compositions and works of art, is treated specifically in later chapters

on dramatic and musical copyright and on artistic copyright.

{Sidenote: Designs patentable}

Designs for use in manufacture are, in the United States, subjects of

patent and not copyright. It is provided by the act of May 9, 1902, that

"any new, original, and ornamental design for an article of manufacture"

may be patented, and this classification inferentially excludes such

designs from copyright. This generalized description of design patents

replaced, at the suggestion of the Commissioner of Patents, the specific

descriptions in the design patents act of December 1, 1873, and adopted

instead the more comprehensive phraseology of the act of February 4,

1887, for the punishment of infringement of design patents. In like

manner the new British code excludes designs registrable under the

patents and designs act, 1907, "except designs which, though capable of

being so registered, are not used or intended to be used as models or

patterns to be multiplied by any industrial process."

{Sidenote: Foreign practice}

"The foreign copyright legislation," as is stated in Copyright Office

Bulletin, No. 9 of 1905, "instead of specifically naming the productions

which are subject-matter of copyright, generally uses some inclusive

expression, such as 'all writings,' 'every kind of literary work,'

'works of literature,' 'literary and scientific works,' 'every

production of literature and science,' and even such inclusive terms as

'every work of the intellect.'" Spain adds the inclusive phrase

"produced or published by ... any kind of impression or reproduction

known now or subsequently invented." Great Britain, most of her

colonies, and some other countries have set forth specific categories.

But the new British measure uses the general phrase "every original

literary dramatic musical and artistic work"--this replacing the several

categories in the several previous laws. In a few countries manuscripts,

personal letters and telegraphic messages, mostly in newspaper use, and

in Ecuador, titles of periodicals, are specifically scheduled as

subjects of copyright.

{Sidenote: International definition}

The Berlin convention uses the general expression "literary and artistic

works," which it defines as including "all productions in the literary,

scientific or artistic domain, whatever the mode or form of

reproduction," then specifying in detail categories of literary,

dramatic, musical and other artistic works, as set forth in the chapter

on international conventions and arrangements.

VII

OWNERSHIP OF COPYRIGHT: WHO MAY SECURE COPYRIGHT

{Sidenote: Persons named}

The American code of 1909 names (sec. 8) "the author or proprietor of

any work made the subject of copyright by this Act, or his executors,

administrators, or assigns" as the persons in whom the copyright may

lodge. It also provides specifically (sec. 62) that "the word 'author'

shall include an employer in the case of works made for hire."

The American law formerly named "the author, inventor, designer, or

proprietor of any work, and the executors, administrators, or assigns of

any such person" as the persons in whom copyright may lodge. The

Librarian of Congress accordingly issued copyright certificates for

books as to an "author" or "proprietor" only, assuming usually that an

editor was the "author" and a publisher the "proprietor," and never

going behind the claim set forth in the application. Under the new law

the applicant is designated only as the "claimant," and no such

distinction is made, except that the Copyright Office has an index card

for proprietor, as well as author, when another than the author makes

the application.

{Sidenote: The author primarily}

The author is the person primarily entitled to copyright. He may sell or

otherwise transfer his production before it is copyrighted, in which

case the new proprietor obtains all the common law rights of property,

both in the manuscript and its publication, including the right to

extend, Drone argues, to the finder of an unpublished manuscript,

provided no one successfully disputes his ownership of his find, if the

manuscript be copyrightable; but there are no decisions on this point.

If a copyright is taken out by another person (as the publisher of the

book), it is done impliedly in trust for the author, as is a usual

custom among American publishers. The proprietor is defined to mean "the

representative of an artist or author who might himself obtain

{Sidenote: Claimant's right to register}

The Register of Copyrights is not a _quasi_ judicial officer, as is the

Commissioner of Patents, and he does not undertake to make decision as

to the right of the claimant, this question being one for determination

by the courts in specific instances. In cases of doubt, however, he may

in practice, for the sake of convenience and of clearness of record,

call the attention of the claimant to such doubt and invite explanation,

but he probably would not be justified in refusing to register the

application for a claimant who asserted his right to such entry. A

former Librarian of Congress, then directly the copyright officer, used

to say that he would enter copyright for any one on the Bible in King

James' version if formal application were made to him, thus emphasizing

the statement that he had no judicial authority. In the case of Everson

_v._ John Russell Young, then Librarian of Congress, Judge Cole in 1889,

while refusing the mandamus asked for, asserted incidentally that "the

Librarian had no discretion." Where a second application is made for the

entry of the same copyrightable work by a second party, the copyright

officer would not decline to register the second application, if the

claimant insisted on his right, after the fact of the first registration

had been brought to the second claimant's notice, and the question of

ownership would have to be brought before the courts. It is only in the

case of works evidently not copyrightable, or in the case of claimants

not entitled to apply for registration, as a citizen of a foreign

country with which the United States has no copyright relations, or in

other cases evidently beyond the scope of the law, that the copyright

officer would exercise discretion and decline to make the record.

{Sidenote: Employer as author}

The provision of the new code specifically including as author (sec. 62)

"an employer in the case of works made for hire" is new in American law,

but it adopts previous decisions of the courts. It does not, however,

adjudicate the application or specific definition of this phrase, which

remains in large measure a question of contract. Earlier copyright

decisions were to the effect that the authorship may inhere in the

employer, if the design of the work is so far his as to make him the

virtual creator and the actual writer a deputy merely; but that he is

not an author who "merely suggests the subject, and has no share in the

design or execution of the work." But under the new law, the case turns

upon the meaning of "employment," which would be clear in the case of

writers paid wages or salary for doing the work on an encyclopaedia, but

might not be clear in the case of an author paid in advance or on

account by a publisher, though working on a general plan suggested or

invented by the publisher. In such cases the proprietary right,

including the right to secure copyright, depends upon the contract,

implied or express, and the courts will decide this according to the law

of contracts. In Boucicault _v._ Fox, in 1862, Judge Shipman, in the U.

S. Circuit Court, held, as to the play "The octoroon," that "a man's

intellectual productions are peculiarly his own, and he will not be

deemed to have parted with his right and transferred it to his employer

until a valid agreement to that effect is adduced." It is safer in all

cases, for the protection of the employer and for the sake of clear

relations with the actual person who does the work, that there should be

a definite contract.

When a salaried law reporter had been employed by the State of New York

under a law that the copyright of the Reports should vest in the State,

Judge Nelson for the Circuit Court of Appeals, in 1852, in Little _v._

Gould, held as valid an entry by the Secretary of State, "in trust for

the State of New York," though no formal assignment had been made.

{Sidenote: Implied ownership}

In the absence of specific contract, or even in some cases of specific

contract, many cross-questions may arise which the law does not and

cannot determine in advance. In the case of a book "with illustrations

by John Leech," where Leech retained the copyright of the designs,

though the publishers owned the wood on which he had drawn them, an

English court held to a distinction between the copyright and the right

to the material, and directed the publishers to waive their lesser right

and surrender the blocks, in view of the circumstances of the contract.

{Sidenote: Protection outside of copyright}

Most of the cases arising as to ownership are, in fact, issues outside

of copyright law, as when in 1883 in Clemens _v._ Belford, in the U. S.

Circuit Court in Illinois, Samuel L. Clemens vainly sought to restrain

the use of his pen-name, "Mark Twain," in a collection of his

uncopyrighted papers, Judge Blodgett holding that whoever has a right to

publish has a right to state authorship, though an author can restrain

the publication over his name of things he did not write. The same

doctrine was upheld in 1910 in Ellis _v._ Hurst, where a publisher had

printed with the real name of the author some non-copyright books which

Edward S. Ellis had put forth under a pseudonym. Judge Greenbaum, in the

N. Y. Supreme Court, held that the law insuring right of privacy does

not prevent the use of a writer's name on a book undoubtedly of his

writing.

In 1908 Mr. Clemens sought in vain to prevent the use by others of his

pseudonym, "Mark Twain," by incorporating a company with this name,

planning thus to secure the exclusive use of the name for this

corporation and practically obtaining a continuing trade-mark protection

for it under this device. But that an author may protect a _nom de

plume_ of settled use independent of copyright or trade-mark was held in

Landa v. Greenberg in 1908, in Chancery Division.

{Sidenote: Work in cyclopaedias}

When, as in the case of a cyclopaedia, many persons are employed at the

offices of an employer, using his materials and facilities, and

especially if on salary, the courts would undoubtedly uphold his full

proprietorship in their work. Where outside persons contribute special

articles, the presumption would probably be that the ownership of the

that neither he, without the author's consent, nor the author, without

his consent, could publish the article in other competing shape. In

Bullen _v._ Aflalo, the House of Lords, in 1903, reversing the lower

courts, protected the proprietors of an encyclopaedia who had purchased

articles from authors, against reprints of the material elsewhere, by

the authors themselves, on the ground "that the right to obtain

nothing from his bargain; and unless the publisher and proprietor of the

encyclopaedia stood in the shoes of the actual writer and was the

proprietor of the copyright, he would have nothing for his money,

because the articles might be published by others and he would have no

remedy, not having the copyright."

{Sidenote: Association of author's name}

The right of a contributor to have his name associated with his work in

the case of an encyclopaedia, at issue in Basil Jones _v._ American Law

Book Co., where the individual writer's name was replaced by that of a

distinguished jurist, though upheld in 1905 by Judge McCall in the N. Y.

Supreme Court, was denied in the reversal of this decision in 1908 by

the Appellate Division through Judge Houghton.

{Sidenote: Added material and alteration}

Where a publisher had affixed additional material to a copyrighted book,

the author was denied relief in Holloway _v._ Bradley, in 1886, by Judge

Butler in the U. S. Circuit Court; but this decision would not hold

where the added material was so placed as to give the false impression

that it was written by the author of the copyrighted work. Thus in 1910,

in Gilbert _v._ Workman, Sir W. S. Gilbert obtained an order in the

Chancery Division through Justice Neville against the interpolation of a

song into his copyrighted opera without his consent.

{Sidenote: Separate registration of contributions}

This would hold true to like extent in respect to alterations, which

might be permissible when in the nature of proof-reading correction or

editorial revision, but contrary to equity when they pervert, obscure,

or otherwise misrepresent the author.

In respect to composite works, the new American code indicates (sec. 23)

that there may be separate registration of contributions, inferentially

in the person of "an individual author," as distinguished from the

general entry for copyright of the composite work. This doubtless refers

to the practice, for instance, of the entry in his own name of his

specific work, by a novelist or other contributor to a periodical, in

addition to the general entry of the number of the periodical of which

it is a copyrightable component part. The only direct effect is to give

to the specific author _prima facie_ evidence of ownership in his

specific contribution, as distinguished from the right of the proprietor

of the general copyright, and in some respects the clause is ambiguous

and perhaps misleading, making it the more desirable that the relation

of the individual author should be defined by contract. It is not really

in conflict, however, with the principle that there cannot be two

copyrights in the same work, as the evident distinction implied is that

the proprietor of the general copyright holds the right for publication

in the periodical and that the specific author reserves the right of

publication in other form, which distinction is sufficiently provided

for as a matter of contract and does not depend upon specific entry of

the contribution. The wisest course may be for the proprietor of the

periodical or other composite work to reassign his interest in the

specific contribution, as was done by the proprietors of the _Smart Set_

as adjudicated in the case of Dam _v._ Kirke La Shelle Co., cited in the

chapter on dramatic and musical copyright, and thus remove possible

doubt as to ownership.

{Sidenote: Anonymous works}

There is no specific reference in the new American code as to anonymous

or pseudonymous works, except as to duration of copyright. In practice,

the Copyright Office assumes that the applicant for the entry of an

anonymous or pseudonymous work is the qualified and legal author or

proprietor, and any disputed question of fact would ultimately be

decided by the courts.

{Sidenote: Joint authorship}

There may be joint authorship in a work of common design, in which case

the joint authors will become owners in common of the undivided

property; but mere alterations or work on specific parts could not

justify claim to more than such alterations or parts. The copyright

would naturally be entered in both names, but as one copyright; it was

held in 1902, in Mifflin _v._ Dutton, by the U. S. Supreme Court, that

"there cannot be duplicate copyrights of the same book in different

names." If one of the joint authors and not the other should apply for

entry, the Copyright Office would in practice probably record the

common interest; but if two joint authors applied simultaneously and

severally, the question of ownership would have to be settled by the

courts.

{Sidenote: Corporate bodies}

A corporate body, even though not incorporated under statute, is

considered an author in the case of its own proceedings or similar

publications, and in 1903 Justice Holmes rendered the decision of the U.

S. Supreme Court in the case of Bleistein _v._ Donaldson Lith. Co.,

though the court was divided on the subject, that a copyright taken in

the name of the Courier Lithographing Company, which was only the trade

name of the complainant, was valid.

{Sidenote: Posthumous works}

In the case of posthumous works, the person entitled to copyright would

be the executor, administrator, or the heirs of the author, and the

owner of an unpublished manuscript could probably enter and maintain

{Sidenote: The Peary cases}

{Sidenote: Opposing decisions}

The first important case under the new American code, in September,

1909, dealt with the question who may obtain copyright. On the report of

the discovery of the North Pole, the New York _Herald_ procured from Dr.

Cook his account of his journey and copyrighted it on its publication in

the _Herald_,--which copyright does not seem to have been questioned.

Immediately thereafter came Commander Peary's account of his polar

journey, for which the New York _Times_ had contracted with him before

his departure in the previous year. The Peary report was published

simultaneously by the New York _Times_ and the London _Times_, but the

difference of five hours enabled the correspondents of the New York

_Sun_ and _World_ to cable the report to their respective papers in time

for publication at the same hour in America as in the New York _Times_.

Anticipating this course, the New York _Times_ had taken the precaution

to publish the report in pamphlet or "book" form some hours before

newspaper publication, and to copyright this as a book. When an

injunction was asked in the U. S. Circuit Court from Judge Hand, that

judge granted the injunction, but on the required production of the

contract in court, dissolved his injunction on the ground that the

contract between Peary and the New York _Times_ gave to the _Times_ only

the right to news publication and specifically reserved to Peary

magazine and book rights. He inferred thus that the _Times_ had no right

to copyright the news report as a book, and was not the agent of the

author for that purpose. To the contrary, Judge Grosscup in Chicago, in

an exactly similar case against the Chicago _Inter-Ocean_ and other

Chicago papers, and with the contract before him, maintained the

far been adjudicated in the higher courts. It will be observed that the

question is not strictly one of copyright, but of contract, and that it

is not denied that the news report, in the literary form given it by the

author, was a proper subject of copyright, though the news of the

discovery of the North Pole might not be copyrightable. Judge Hand

perhaps erred in assuming that there could be separate copyright for

news, magazine, or book publication, overlooking the fact that Peary had

conferred on the _Times_ authority to protect the report sent to it by

cable, while reserving to himself rights in magazine or book publication

of his material, whether in the same or different form.

{Sidenote: Renewal rights}

In the renewal of copyright, the new American code follows the previous

law in differentiating the persons entitled to renew the copyright. It

provides (sec. 23) that in the case of a posthumous composite or

corporate work originally copyrighted by the proprietor thereof or a

work made for hire, the proprietor of such copyright shall be entitled

to a renewal; but in other cases, including a separately registered

contribution by an individual to a composite work, the author or the

widow, widower or children, or, if such be not living, the author's

executors or next of kin shall be entitled to a renewal. This means that

there can be no renewal by an assignee proprietor, and that in the

absence of natural heirs of a personal author, no person is entitled to

a renewal of his copyright. The new law has been specifically construed

to this effect by the Attorney-General in his opinion of February 3,

1910. It should be noted that the word "administrators," included in the

provision as to original application (sec. 8), is omitted from the

provision as to renewal (sec. 23) including renewal of existing

copyrights (sec. 24), indicating that while an author may make bequest

of copyright for the renewal term, which right may then be claimed by

his executor, the right to renew lapses when he makes no will and has no

next of kin to inherit the right of renewal.

{Sidenote: Assignments}

Specific provision as to the method and record of the transfer of

copyrights by assignments are contained in the following provisions of

the code of 1909:

"(Sec. 42.) That copyright secured under this or previous Acts of the

United States may be assigned, granted, or mortgaged by an instrument in

writing signed by the proprietor of the copyright, or may be bequeathed

by will.

"(Sec. 43.) That every assignment of copyright executed in a foreign

country shall be acknowledged by the assignor before a consular officer

or secretary of legation of the United States authorized by law to

administer oaths or perform notarial acts. The certificate of such

acknowledgment under the hand and official seal of such consular officer

or secretary of legation shall be _prima facie_ evidence of the

execution of the instrument.

{Sidenote: Assignment record}

"(Sec. 44.) That every assignment of copyright shall be recorded in the

United States or within six calendar months after its execution without

the limits of the United States, in default of which it shall be void as

against any subsequent purchaser or mortgagee for a valuable

consideration, without notice, whose assignment has been duly recorded.

"(Sec. 45.) That the register of copyrights shall, upon payment of the

prescribed fee, record such assignment, and shall return it to the

sender with a certificate of record attached under seal of the copyright

office, and upon the payment of the fee prescribed by this Act he shall

furnish to any person requesting the same a certified copy thereof under

the said seal.

{Sidenote: Substitution of name}

"(Sec. 46). That when an assignment of the copyright in a specified book

or other work has been recorded the assignee may substitute his name for

that of the assignor in the statutory notice of copyright prescribed by

this Act."

It should be noted that this last provision, authorizing the

substitution of a name, is applicable only to the general copyright in a

work, and not to a divided right; otherwise there would seem to be more

than one copyright in the same work. The Copyright Office will, however,

record assignments of specific or divided rights without reference to

this power of substitution. Further assignment from one assignee to

another is permissible to any extent, and in cases of repeated

assignment of a general copyright there may be further substitution of

names.

{Sidenote: Witnesses}

There is no specific requirement as to the witnessing of assignments,

which would therefore follow the usual principles of law. This was,

however, an important question in England, and under the early English

statute the courts held that assignments must be in writing, attested by

two witnesses; the later statute of Victoria modified the language, and

the new English code requires assignment in writing signed by the owner

or his authorized agent, without specifying witnesses. But assignment of

common law rights (as in an unpublished manuscript) may doubtless be by

word of mouth.

{Sidenote: "Outrights" and renewal}

Where an author sells his entire rights "outright," he cannot transfer

the right to take out renewal, but he may directly or by inference bind

himself to apply for such renewal in the interest of the new proprietor.

Under such a contract, this proprietor could probably require him by

equity proceedings to take this step. Such a contract, however, would

not bar the author from his right to renewal under the copyright law and

through the Copyright Office, although it is possible that the courts

might enjoin an author from renewal or assignment of a renewed copyright

in the interest of another than the original assignee. It should be

noted that in the case of composite, corporate or like impersonal works,

copyrighted under the new code, renewal is not restricted to the

_original_ proprietor, though by analogy this should be the practice;

but that in the case of renewal of copyrights existing before July 1,

1909, and in extension of the present renewal terms, the use of the

phrase "such proprietor," referring back to "the original proprietor,"

does make such limitation.

{Sidenote: Proof of proprietorship}

Where the copyright proprietor of record is not the author, the courts

may require him to prove his rights, in default of which the copyright

certificate will be adjudged null and void, as was done in 1909 by the

Circuit Court of Appeals both in Bosselman _v._ Richardson, where a son

copyrighted paintings by his father and failed to prove that they had

not before been published, and in Saake _v._ Lederer, where the court

canceled the copyright of the play "Old Heidelberg" because Lederer had

obtained from the German author only a license to perform and not a

right to copyright.

{Sidenote: Foreign citizens}

As to copyright by others than citizens of the country, the law of 1909

provides (sec. 8) "that the copyright secured by this Act shall extend

to the work of an author or proprietor who is a citizen or subject of a

foreign state or nation, only:

"(a) When an alien author or proprietor shall be domiciled within the

United States at the time of the first publication of his work; or

"(b) When the foreign state or nation of which such author or proprietor

is a citizen or subject grants, either by treaty, convention, agreement,

or law, to citizens of the United States the benefit of copyright on

substantially the same basis as to its own citizens, or copyright

protection substantially equal to the protection secured to such foreign

author under this Act, or by treaty; or when such foreign state or

nation is a party to an international agreement which provides for

reciprocity in the granting of copyright, by the terms of which

agreement the United States may, at its pleasure, become a party

thereto.

"The existence of the reciprocal conditions aforesaid shall be

determined by the President of the United States, by proclamation made

from time to time, as the purposes of this Act may require."

{Sidenote: Earlier provisions}

The Revised Statutes formerly extended copyright to "a citizen of the

United States or _resident therein_ or his widow or children," and the

act of 1891 provided for a _quasi_ international copyright on a basis

similar to that in subsection (b), cited above, of the law of 1909, _i.

e._ on a basis of reciprocity. The new American code practically adopts

the features both of the Revised Statutes and the act of 1891, though

with verbal and substantial differences. The word "domiciled" is new in

the law and has yet to be construed in a copyright case, but it is

presumably the equivalent of "resident." The new Rules and Regulations

of the Copyright Office use the phrase "(2) a resident alien domiciled

in the United States at the time of the first publication of his work."

{Sidenote: Residence}

A resident, under the American decisions, is a person who intends to

reside permanently in this country. It is decided by the intention of

the resident. A person who is residing here without intention of

permanence probably cannot maintain copyright under this clause. For

English copyright, on the contrary, a person temporarily residing in His

Majesty's dominions has been considered a resident. "The United States"

would doubtless be construed to include territories and dependencies, as

specific jurisdiction is given (sec. 34) to stated courts in Alaska,

Hawaii, the Philippine Islands and Porto Rico, in addition to the

general decisions of the U. S. Supreme Court.

Under the statute of Anne the English courts differed persistently on

the question whether a non-resident foreigner could obtain British

1854, in the ultimate case of Jefferys _v._ Boosey, the House of Lords,

after consulting the judges, of whom six denied and four sustained the

contention, decided unanimously that a non-resident foreigner could not

acquire copyright by first publication. Under the law of 1842, the

question was again raised, in view of the variation of the language from

that in the statute of Anne; in 1868, in the case of Routledge _v._ Low,

in which an American author claimed copyright for his work first

published in London while he resided for a few days in Canada, the House

of Lords held that a foreigner might thus obtain copyright by temporary

residence within the British dominions and indicated, but did not

decide, that a foreigner could obtain copyright by first publication,

even if not temporarily resident within the British dominions. After the

passage of the "international copyright amendment" in 1891, the American

law authorities consulted with the law officers of the Crown, who

rendered a decision that foreign authors were entitled to British

decision the President based his proclamation of reciprocal relations

with Great Britain. The new British measure retains first publication

within the included parts of the Empire as the essential condition,

except in unpublished works, unless otherwise provided under

international copyright, though the Crown may withdraw this privilege

from foreigners whose countries do not assure reciprocity.

{Sidenote: Intending citizens}

The provision of subsection (a) is chiefly useful, it would seem, to

protect intending citizens who have applied for naturalization papers

and incidentally renounced their previous allegiance to another power

and thus put themselves beyond the pale of the international

conventions.

{Sidenote: Time of first publication}

"First publication" is not limited in terms to the United States, and

the "alien author or proprietor," provided he makes application under

this clause and is not a citizen of a country with which the United

States has a copyright convention, must therefore be domiciled here, it

would seem, at the time of first publication, in whatever country that

may be.

{Sidenote: Non-qualified authors cannot transfer}

It has twice been decided, both prior to and since the "international

secure a copyright cannot indirectly obtain one by assignment to an

American or other proprietor. In 1890 J. M. Barrie assigned to J. W.

Lovell, and he to the U. S. Book Company, his American rights in "The

little minister," and after the act of 1891 the latter endeavored to

restrain a dramatization of the story. Judge Jenkins held with the lower

court that the foreign author could transfer only, prior to the act, the

right to publish from advance sheets and not the right to copyright. In

the case of Bong _v._ Campbell Art Co., in which it was sought to

protect under the act of 1891 a work by a Peruvian painter, Hernandez,

whose country had no international relations with the United States,

through transfer to a German proprietor, whose country had reciprocal

relations, it was held in 1909 by the U. S. Supreme Court, through

Justice McKenna, that an author who is a citizen of a country with which

the United States has no copyright relations cannot indirectly obtain

American copyright by making a citizen of a country with which the

United States has copyright relations the proprietor of his work. A

proprietor has been construed by the courts to mean merely an assignee

of a qualified author. It is evident, therefore, despite the ambiguous

phrasing of the statute, that an assignee proprietor, though domiciled

in the United States at the time of first publication of a work, could

not obtain copyright unless the author were so domiciled, for the

contrary ruling would nullify the general purport of the law by

permitting an assignee to acquire rights which the non-qualified author

could not secure. The evident construction of the word "proprietor" in

this clause is as proprietor of an impersonal work and not an assignee

proprietor. The Rules and Regulations of the Copyright Office,

construing the code of 1909, say specifically (2): "If the author of the

work should be a person who could not himself claim the benefit of the

{Sidenote: Foreign ownership}

But it seems that a foreigner may enter copyright in the work of a

citizen or resident author--it being foreign authorship, not ownership,

which the law refuses to protect, though this point has not been

judicially determined. Under the provision (sec. 62) of the new American

code giving copyright to an employer as author "in the case of works

made for hire," it would seem that a person entitled to make copyright

entry might, as an employer, obtain copyright on the work of an alien

employee not domiciled here and not otherwise entitled to enter

a separate or separable work, as this would be contrary to the

principles adjudicated as above cited.

The complicated question of the ownership and the right to secure

under this international copyright provision, is covered under

translation in the preceding chapter on subject-matter of copyright.

{Sidenote: Proclaimed countries}

Under the provisions of the international copyright clause of 1891

Presidential proclamations have designated as countries with which the

United States has copyright relations (July 1, 1891) Belgium, France,

Great Britain and her possessions, Switzerland; (April 15, 1892)

Germany; (October 31, 1892) Italy; (May 8, 1893) Denmark; (July 20,

1893) Portugal; (July 10, 1895) Spain; (February 27, 1896) Mexico; (May

25, 1896) Chile; (October 19, 1899) Costa Rica; (November 20, 1899)

Holland and possessions; (November 17, 1903) Cuba; (January 13, 1904)

China--this treaty of October 8, 1903, protecting for ten years books,

maps, prints or engravings "especially prepared for the use and

education of the Chinese people," or "translation into Chinese of any

book," but leaving to Chinese subjects liberty to make "original

translations into Chinese"; (July 1, 1905) Norway; (May 17, 1906)

Japan--this treaty of November 10, 1905, also excepting translations,

and (August 11, 1908) additionally protecting Japanese relations in

China and Korea; (September 20, 1907) Austria, not including Hungary;

and (April 9, 1908) under the Pan American convention signed in Mexico

City, January 27, 1902, effective from July 1, 1908, Guatemala,

Salvador, Costa Rica, Honduras and Nicaragua.

{Sidenote: Under act of 1909}

Under the provisions of the act of 1909, the President of the United

States issued a general proclamation, dated April 9, 1910, certifying

anew to the existence of reciprocal relations with the above-mentioned

countries, under the arrangements of the new act, as from its effective

date July 1, 1909. This accepted such relations as continuous and

uninterrupted, without the necessity of new treaties, with the effect

that international copyrights before July 1, 1909, were under the

arrangements of the act of 1891 and from and after that date under the

arrangements of the code of 1909. Luxemburg was added by proclamation of

June 29, 1910, and Sweden by that of May 26, 1911. Proclamations of

December 8, 1910, as to Germany, and June 14, 1911, as to Belgium,

Luxemburg and Norway, proclaimed reciprocal relations as to mechanical

reproductions.

{Sidenote: Buenos Aires convention}

The ratification of the Buenos Aires convention by the U. S. Senate,

February 16, 1911, has the effect of authorizing the President to

proclaim reciprocal relations with other countries which are parties to

that treaty, as each ratifies the convention.

{Sidenote: The new British code}

The new British measure specifies that "the author of a work shall be

the first owner of the copyright," except where an engraving,

photograph, or portrait is ordered for valuable consideration or where

work is done in the course of employment. The owner may assign the

or subject to limitations to any particular country, and either for the

whole term of the copyright or for any part thereof, and may grant any

interest in the right by license"; in case of partial assignment, the

original owner and the assignee become respectively the owners of the

residual and assigned portions of the copyright. But any assignment,

except by will, becomes null and void twenty-five years after the death

of the author when the entire rights revert to his heirs.

{Sidenote: Foreign practice}

In general the statutes of most of the copyright countries designate

"authors" and their "assigns and heirs" as the persons who may obtain

personal representatives of an author." In certain countries the laws

specifically mention as persons who may secure copyright "joint

authors," "proprietors" in some countries and "publishers" in other

countries of anonymous and pseudonymous, posthumous or unpublished

works, periodicals and composite works, "corporate bodies,"

"translators," "editors, compilers or adapters" and "persons who give a

commission for a portrait or photograph."

VIII

DURATION OF COPYRIGHT: TERM AND RENEWAL

{Sidenote: Historic precedent}

The duration of copyright was in the early printers' privileges for a

short term, as for seven years, except in France, where copyrights were

in perpetuity until the act of the National Assembly; in modern times

the copyright term has been lengthened until a term extending through

and beyond the life of the author has been adopted by thirty-seven

countries, or more than half of those which have copyright laws, of

which four assure perpetual copyright. The Constitution imposes only one

limitation on the comprehensive rights of authors, in the provision that

protection shall be "for limited times" only. This provision has made

the discussion of perpetual copyright purely academic in this country.

The new American code adopts the double term of twenty-eight and

twenty-eight years, making fifty-six years in all, without reference to

the life of the author.

{Sidenote: Previous American practice}

The American law previous to 1909 provided for a uniform term of

twenty-eight years, dating from the time of recording the title, with a

renewal of fourteen years, securable only by the author, or, if he be

dead at the expiration of the term, by his widow or children. No other

heirs or persons could renew. The new code differs in making the renewal

period a second twenty-eight years and extending the right of renewal to

the executors or next of kin and to the proprietors of composite or

other impersonal works; but it still denies renewal to assignee

proprietors of personal works.

{Sidenote: Term in code of 1909}

The American code of 1909 provides (sec. 23) "that the copyright secured

by this Act shall endure for twenty-eight years from the date of first

publication, whether the copyrighted work bears the author's true name

or is published anonymously or under an assumed name," and makes

provision also in the cases specified for renewal for a second period of

twenty-eight years, provided that renewal application is registered in

the Copyright Office "within one year prior to the expiration of the

original term of copyright."

{Sidenote: Renewal}

The provisions as to renewal are in full as follows (sec. 23):

"_Provided_, That in the case of any posthumous work or of any

periodical, cyclopaedic, or other composite work upon which the copyright

was originally secured by the proprietor thereof, or of any work

copyrighted by a corporate body (otherwise than as assignee or licensee

of the individual author) or by an employer for whom such work is made

for hire, the proprietor of such copyright shall be entitled to a

renewal and extension of the copyright in such work for the further term

of twenty-eight years when application for such renewal and extension

shall have been made to the copyright office and duly registered therein

within one year prior to the expiration of the original term of

copyrighted work, including a contribution by an individual author to a

periodical or to a cyclopaedic or other composite work when such

contribution has been separately registered, the author of such work, if

still living, or the widow, widower or children of the author, if the

author be not living, or if such author, widow, widower, or children be

not living, then the author's executors, or in the absence of a will,

his next of kin shall be entitled to a renewal and extension of the

application for such renewal and extension shall have been made to the

the expiration of the original term of copyright: _And provided

further_, That in default of the registration of such application for

renewal and extension, the copyright in any work shall determine at the

expiration of twenty-eight years from first publication."

{Sidenote: Extension of subsisting copyrights}

The extension of copyrights subsisting July 1, 1909, is provided for as

follows (sec. 24): "That the copyright subsisting in any work at the

time when this Act goes into effect may, at the expiration of the term

provided for under existing law, be renewed and extended by the author

of such work if still living, or the widow, widower, or children of the

author, if the author be not living, or if such author, widow, widower,

or children be not living, then by the author's executors, or in the

absence of a will, his next of kin, for a further period such that the

entire term shall be equal to that secured by this Act, including the

renewal period: _Provided, however_, That if the work be a composite

work upon which copyright was originally secured by the proprietor

thereof, then such proprietor shall be entitled to the privilege of

renewal and extension granted under this section: _Provided_, That

application for such renewal and extension shall be made to the

the expiration of the existing term."

{Sidenote: Assignee of unpublished manuscripts}

In holding with the Attorney-General that an assignee cannot obtain

renewal, Judge Brown in the U. S. Circuit Court in Rhode Island, in

White Smith _v._ Goff, in 1910, raised but did not decide the

"difficult" question whether, if an author sells his unpublished

manuscript with right to publish and copyright, the new owner as the

original copyright proprietor may claim renewal, or whether the author

might reclaim the right.

{Sidenote: Extension of subsisting renewals}

Under the provisions of the renewal clauses (sec. 24), not only may the

original copyright term of a subsisting copyright be renewed for the

longer term of twenty-eight years instead of fourteen years, but a

subsisting copyright renewal may be extended from the added fourteen

years to the full renewal term of twenty-eight years, and a separate

application form for this latter class of cases is provided by the

{Sidenote: Publishers' equities}

In the copyright conferences, it was pointed out by publishers that the

right of the author to renewal, and the implied denial of that right to

an assignee proprietor, placed at serious disadvantage a publisher who

had made investment in plates of an author's works, and would be

deprived of the use of his investment at the end of the original term in

case the author preferred to make arrangements with another publisher

for the renewal term. The Congressional Committee failed, however, to

provide a remedy for this through the proposed Monroe-Smith amendment,

requiring that in such case author and publisher should unite in the

application for renewal. No contract on the part of an author can give a

publisher the right to claim copyright renewal under the new code,

although a contract to make claim for the renewal period and transfer

the copyright for the renewal period to the publisher, might be enforced

by the courts through a writ requiring the author to enter such claim

and assign the renewed copyright in accordance with the contract. When a

copyrighted work is sold "outright," it therefore does not include

renewal of the copyright, and unless the author registers his renewal

claim, the right to renewal lapses.

{Sidenote: Estoppel of renewal}

Where an author has sold "outright" all his right, title and interest in

his work, it is possible that this may estop him from application for

renewal or invalidate a renewal, but this question must be decided by

the courts when a case arises. It is important that any contract between

author and publisher should be clear and specific on this vexed question

of rights for the renewal term. No provision is made for notification of

renewal in the copyright notice, and therefore, after the expiration of

the original term, information must be sought from the Copyright Office

as to whether there has been renewal extension of the term. As it would

be hazardous to omit the original copyright notice or to replace it by

one giving the date of renewal, which might be construed to involve

claim of a longer term and thus defeat itself, it may prove the wiser

course to add to the official original notice, the unofficial notice

"Copyright renewed, 19__."

{Sidenote: Life term and beyond}

The international copyright convention, as modified at the Berlin

conference of 1908, adopted the term of life and fifty years,--previously

in force in France and fourteen other countries,--subject to adoption by

domestic legislation. A term of life and a specified number of years

after the death of the author, preferably fifty years for personal

works, and a term of fifty years for impersonal works, was advocated by

the American Copyright leagues and other friends of copyright and was in

the early drafts of the new copyright code.

It was pointed out that Emerson, Longfellow, Lowell, Whittier, Holmes

and others outlived their earlier copyrights; that Edward Everett Hale,

whose "Man without a country" did for this nation a patriotic service

scarcely second to that of the great generals of the civil war, had no

longer copyright in this work, although private soldiers, their relicts

and descendants, were still paid pensions; and that many others of our

foremost authors had been, or under the present system would be,

deprived of their created property within their lifetime. The term

advocated provides for the author and his children's children during the

probable minority of the grandchildren, a period to which the entail of

realty is limited by our laws. But the final decision of the

Congressional Committees was for the simpler, though in other respects

less satisfactory, period of twenty-eight years, as heretofore, with a

renewal period of a second twenty-eight years, under the limitations

above cited. No other countries, except Canada and Newfoundland,

following our example, have this double or renewal term.

{Sidenote: Unpublished works}

As a lecture or other work intended for oral delivery or a dramatic or

musical work or a work of art, an unpublished dramatic or musical work

or a work of art not reproduced in copies for sale is copyrightable

without reference to date of publication, it is not altogether certain

whether the term extends from the date of registration or the date of

first delivery, performance or exhibition, or whether the statutory law

now protects such a work under common law as unpublished, pending

publication and therefore for an indefinite period if not practically in

perpetuity. The Copyright Office issues a certificate for twenty-eight

years, but without reference to initial date, which would be presumably

the date of the certificate. The Copyright Office will doubtless, under

this precedent, issue renewal certificate for the second term of

twenty-eight years.

{Sidenote: Publication as date of copyright}

As the new copyright code makes publication with notice the basis of

specifically defined (sec. 62) as "the earliest date when copies of the

first authorized edition were placed on sale, sold, or publicly

distributed by the proprietor of the copyright or under his authority."

Such date is included in the application for registry at the Copyright

Office, and on the same day twenty-eight years or fifty-six years

thereafter the copyright ends. A provision for terminating copyrights at

the end of the calendar year of expiration was included in the early

drafts of the code, but was not included in the law as enacted.

{Sidenote: Serial publication}

In the case of works published and copyrighted as serials, as a novel

published in parts in a monthly magazine, the copyright runs technically

from the first publication of each part; and at the end of the

twenty-eight or fifty-six years, each part could be successively

published at monthly intervals free from copyright. Practically,

however, such a copyrighted serial could not be published complete until

twenty-eight or fifty-six years from the publication of the last part.

In usual practice a novel is printed in book form a month or two before

its completion as a serial in a magazine, and the date of the copyright

on the completed work would then terminate at the end of the

twenty-eight or fifty-six years from publication in book form.

{Sidenote: Joint authorship}

The use of the date of publication as the beginning of the copyright

term and the specification of twenty-eight years and twenty-eight years

for its duration, obviates questions as to anonymous and pseudonymous

works, composite works or works of joint authorship. The earlier drafts

of the bill, providing for a term through and beyond life, made the

lifetime of the last surviving author the basis for the term of

applied in the German courts, when it was held as to the opera "Carmen"

that Bizet's music was out of copyright, but that the libretto was

protected because one of its three joint authors was still living.

{Sidenote: Termination by forfeiture or laches}

A copyright is terminated _ipse facto_ by forfeiture as provided in the

act, either because of failure to deposit copies after notice from the

manufacture (sec. 17). It may also be terminated by _laches_, that is,

carelessness in protecting one's rights, as by omission of the notice,

unless by accident or mistake, from particular copies (sec. 20).

{Sidenote: Abandonment}

A copyright may be terminated by voluntary abandonment or purposed

dedication as well as by expiration, forfeiture or _laches_. Thus in

1854 Congress purchased for $10,000 the copyright of Sumner's new method

of ascertaining a ship's position, dedicated the method to general

public use, and extinguished the copyright. The Copyright Office has no

authority to recognize annulments, but it has noted request for

annulment when received on the registry. In 1910 the Oxford University

Press, American Branch, formally notified the Treasury Department that

they abandoned the copyright on Oxford Cyclopaedic Concordance

copyrighted by them in 1903, and collectors of customs were accordingly

authorized by circular letter of January 25, 1910, to permit importation

"of any copies of the said work with the notice of the copyright

obliterated, or a notice of the abandonment of the copyright plainly

printed upon the same page with the notice of copyright and adjacent

thereto." This last was a curious "boomerang" effect of the

manufacturing clause as extended to binding in the act of 1909.

{Sidenote: In England}

In England the term of book copyright has been the life of the author

and seven years after his death, or forty-two years from first

publication, whichever the longer. The copyright in other articles has

varied according to specific laws. The Copyright Commission of 1876

proposed, for all copyright articles as well as books, a term of life

and thirty years after the author's death, according to the German

precedent, or in case of anonymous and posthumous books and

encyclopaedias, thirty years from the date of deposit in the British

Museum, an anonymous author to have the right during the thirty years to

obtain the full term by publishing an edition with his name. The English

law contained a specific provision that in the case of articles in

periodicals (but not in an encyclopaedia) the right to publish in

separate form should revert to an author after twenty-eight years; the

Commission proposed a term of three years, during which time also the

author as well as the general owner may bring suit against piracy. The

English committee appointed to make recommendations in respect to the

adoption of the Berlin provisions of 1908 through domestic legislation,

however, reported strongly in favor of a general term of life and fifty

years; and this term has been adopted in the new code.

{Sidenote: The new British code}

This general term of "the life of the author and a period of fifty years

after his death" holds "unless previously determined by first

publication elsewhere." In joint authorship, copyright shall subsist

during the life of the author who first dies and fifty years after or

during the life of the author who dies last, whichever the longer. In

posthumous works, copyright subsists for fifty years from first

publication or performance, whichever the earlier. Anonymous and

pseudonymous, and corporate works are not named in the act, and the term

is presumably fifty years, unless in the former cases identity is

disclosed. For photographs and mechanical music reproductions as such,

the term is fifty years from the making of the original negative or the

original plate. Existing copyrights are extended through the new period;

but for the extended term the rights revert to the author, though an

assignee may require continuance of the assignment or continue to

publish on royalties, as determined by agreement or arbitration.

Assignments, except for parts of collective works, terminate in

twenty-five years, when rights revert to the heirs.

{Sidenote: Perpetual copyright}

The Crown has held an exclusive and perpetual right to license the

printing of the Bible, Book of Common Prayer, ordnance surveys, and

possibly the Acts of Parliament; and specified universities and colleges

were assured perpetual copyright in works given or bequeathed to them

unless given for a limited term, but the right lapsed into the usual

their own benefit. Under the new code, "without prejudice to any rights

or privileges of the Crown," any work prepared or published for His

Majesty or any Government department has copyright for fifty years from

first publication--the effect of which provision on Crown perpetual

copyrights is not clearly evident. A saving clause protects the

universities "in any right they already possess," inferentially limiting

their future copyrights to the statutory term. After the death of the

author of a literary, dramatic or musical work, on complaint of the

withholding of the work from publication or performance, the Judicial

Committee of the Privy Council may require the owner to grant a license

to reproduce or perform the work in public under conditions determined

by the Committee. After twenty-five years, or in the case of existing

copyrights thirty years from the author's death, the work may be

reproduced by any person on prescribed notice in writing of his

intention and payment of ten per cent on the published price in

accordance with regulations by the Board of Trade.

{Sidenote: Other countries}

{Sidenote: International standard term}

Perpetual copyright is granted by the laws of other countries, Mexico,

Guatemala, Nicaragua and Venezuela, while in Montenegro, Egypt, Liberia,

Honduras, the Dominican Republic, Paraguay and Uruguay, which give

common law enforced by the courts, the term is indefinite. A copyright

term extending eighty years beyond the death of the author is granted by

Spain, Cuba, Colombia and Panama. The French precedent of fifty years

after the author's death was followed by Belgium, Russia and the

Scandinavian countries, Hungary, Portugal and some others, and was

adopted by the Berlin convention as the international standard term; the

German precedent of thirty years beyond death was followed by Austria,

Switzerland and Japan, while the British precedent of seven years beyond

death or forty-two years from publication, whichever the longer, was

followed in many of the English colonies and in Siam. Italy has a

curious term of life or at least forty years after publication, with a

second period of forty years during which, though the exclusive rights

lapse, the author enjoys a royalty of five per cent on publication

price. Haiti has the curious term of the life of the author and twenty

additional years for widow or children, or ten years for other heirs. In

Holland fifty years or life, in Brazil fifty years from the preceding

January 1st, and in Greece fifteen years are specified.

{Sidenote: Special categories}

In many countries there are special terms for special categories of

works, as for anonymous, pseudonymous, and corporate works,

translations, photographs and telegraphic dispatches--the latter for a

stated number of hours.

FORMALITIES OF COPYRIGHT: PUBLICATION, NOTICE, REGISTRATION AND DEPOSIT

{Sidenote: General principles}

before the statute of Anne, without record or formalities, but also

without statutory protection; or formalities may be required only as a

prerequisite to protection by actions at law; or formalities may be

required to validate and secure the copyright. English formalities

belong to the second class. American formalities are of the third class,

and without them copyright does not exist.

{Sidenote: Previous American requirements}

The American copyright law of 1909 prescribes exactly the method of

securing copyright, and makes clear the cases in which non-compliance

invalidates copyright. Previous to 1909 copyright was secured by

complying exactly with the statutory requirements of (1) the delivery to

the Librarian of Congress on or before the day of publication, in this

or any foreign country, of a printed (including typewritten) copy of

title or description of the work, (2) the insertion in every copy

published of the prescribed copyright notice, and (3) the deposit not

later (under the law of 1891) than such day of publication (earlier law

allowing ten days after publication) of two copies of the best edition

of a book or other article, or a photograph of a work of art (as to date

of deposit of which last the law was not explicit); and any failure to

comply literally and exactly with these conditions forfeited the

{Sidenote: Present American basis}

The American code of 1909 substitutes an entirely different basis for

securing copyright. Copyright now depends upon (1) publication with the

notice of copyright, and (2) deposit of copies, these copies in the case

of books and certain other works to be manufactured within the United

States. The accidental omission of the copyright notice from "a

particular copy or copies" does not invalidate the copyright though it

may relieve an innocent trespasser from penalty as an infringer; but

failure to deposit within a specified time, or false report as to

manufacture, makes the copyright not valid.

{Sidenote: Provisions of 1909}

The general provisions as to formalities are as follows (sec. 9): "That

any person entitled thereto by this Act may secure copyright for his

work by publication thereof with the notice of copyright required by

this Act; and such notice shall be affixed to each copy thereof

published or offered for sale in the United States by authority of the

protection under section twenty-one of this Act"; and (sec. 10): "That

such person may obtain registration of his claim to copyright by

complying with the provisions of this Act, including the deposit of

copies, and upon such compliance the Register of Copyrights shall issue

to him the certificate provided for in section fifty-five of this Act."

{Sidenote: Publication}

The definition in the act (sec. 62) of "the date of publication" as "the

earliest date when copies of the first authorized edition were placed on

sale, sold, or publicly distributed by the proprietor of the copyright

or under his authority" defines publication, and the clause (sec. 9)

requiring the copyright notice to be affixed to each copy "published or

offered for sale in the United States by authority of the copyright

proprietor" confirms the principle that the copyright proprietor cannot

be held responsible, nor can copyright be voided because of copies

"published," offered, sold or distributed without his authority. The

publication the parenthetical explanation: "(_i. e._, so that all

persons who desire copies may obtain them without restriction or

condition other than that imposed by the copyright law)." It is

questionable, however, whether this explanation does not go beyond the

letter of the law. In Stern _v._ Remick, in 1910, the U. S. Circuit

Court protected the copyright of a song, though only one copy had been

offered for sale and sold. Advance distribution to the trade or of

review copies would not constitute publication. While the law does not

prescribe first publication in this country, it is at least doubtful

whether a book published in another country prior to publication here,

unless protected by international copyright relations, has not fallen

into the public domain and thus forfeited copyright protection here.

{Sidenote: Copyright notice}

The first step in securing copyright, being publication "with the notice

of copyright" "affixed to each copy published or offered for sale in the

United States by authority of the copyright proprietor," the method and

form of this notice is of first importance. The act of 1909 provides

(sec. 18): "That the notice of copyright required by section nine of

this Act shall consist either of the word 'Copyright' or the

abbreviation 'Copr.,' accompanied by the name of the copyright

proprietor, and if the work be a printed literary, musical, or dramatic

work, the notice shall include also the year in which the copyright was

secured by publication. In the case, however, of copies of works

specified in subsections (f) to (k), inclusive, of section five of this

Act, the notice may consist of the letter C inclosed within a circle,

thus: (C), accompanied by the initials, monogram, mark, or symbol of the

such copies or of the margin, back, permanent base, or pedestal, or of

the substance on which such copies shall be mounted, his name shall

appear. But in the case of works in which copyright is subsisting when

this Act shall go into effect, the notice of copyright may be either in

one of the forms prescribed herein or in one of those prescribed by the

Act of June eighteenth, eighteen hundred and seventy-four."

{Sidenote: Previous statutory form}

Under the law of 1874, the prescribed notice was in the old form (Rev.

Stat. 4962), "Entered according to Act of Congress, in the year ----, by

A. B., in the office of the Librarian of Congress, at Washington," with

the optional alternative of the form "Copyright, 18--, by A. B." Under

the new code the latter form is preserved, with the alternative of the

provision "Copr.," with date and name, but the longer form may be used

on books copyrighted under the earlier acts, even if reprinted after the

passage of the later act. Except for books previously copyrighted, the

longer form is not now the legal notice, and its use would be dangerous,

as it does not contain the specific word copyright, or its abbreviation,

now made an obligatory part of the notice. While in Osgood v. Aloe in

1897, the omission of the name from the notice, though on the

title-page, and in Record & Guide Co. _v._ Bromley in 1910, the omission

of the date, though indicated by the date of the periodical in the line

below, were held to void the copyright, such addition as the words

"published by" has been held, as in Hills v. Hoover in 1905, a mere

superfluity not voiding copyright.

{Sidenote: Exact phraseology required}

The exact phraseology and order of words must be followed, and it has

been held that any inaccuracy in the name of the copyright proprietor,

as in the English case of Low _v._ Routledge, by Vice-Chancellor

Kindersley, in 1864, or in the date of the entry, as in the American

case of Baker _v._ Taylor in 1848, when 1847 was put for 1846, makes the

{Sidenote: Name}

The name in the copyright notice (C. O. Rule 24) must be the real name

of a living person or of a firm or corporate body or the trade name in

actual use, and may not be a pseudonym or pen-name or other

make-believe. A copyright notice should not be in the name of one person

for the benefit of another; the beneficiary's name should be the one

printed. A publisher may take out a copyright for an author, however, in

which case the publisher's name and not the author's name will be given,

unless the publisher makes application as the agent of the

author-claimant. The name in the copyright notice must correspond fully

with the real name as given in the application, but an objection that N.

Sarony instead of Napoleon Sarony was not the real name, was quashed in

1884, in Burrow-Giles Lith. Co. _v._ Sarony, by the U. S. Supreme Court.

{Sidenote: Date}

The date of copyright notice, being that of publication, should

correspond with the imprint date on the original edition; but on later

printings or editions, where the date of imprint is changed, the

edition. Thus a book first published in 1911 could not bear copyright

notice of 1910 date, which would mean that copyright was registered

before instead of after publication, which is not possible under the new

law; nor should an edition of 1910 bear copyright notice of 1911, as the

application and notice should state the actual year of publication; and

the date of 1911 in imprint where the copyright notice is of 1910, would

be correct only on a later edition, as above stated. A book may be

printed, however, in a certain year and not published till a later year,

in which case the copyright notice would be of later date than the

imprint date; thus the Copyright Office registered in 1910, under the

new law, a copyright on a work with the imprint of 1904, on assurance

that though printed in 1904, the work was not actually published until

1910. Under the old law, where, as stated above, a copyright notice

later than the actual copyright was disallowed as claiming protection

beyond the copyright term, a later decision, in 1888, in Callaghan _v._

Myers, held, that where a copyright notice gave the year 1866, while the

true date was 1867, there was no harm done to the public, because a year

of the copyright, which really ended in 1895 instead of 1894, was given

to the public, whereas in the previous case an additional year was

claimed. Doubt was thrown upon this decision by Judge Wallace in

Schumacher _v._ Wogram, also in 1888. In Snow _v._ Mast in 1895, the

substitution for 1894 of the abbreviated '94, and in Stern _v._ Remick

in 1910, the use of words or Roman numerals for Arabic, were upheld.

{Sidenote: Accidental omission}

An important safeguard, new in copyright law, is enacted in the

provision (sec. 20): "That where the copyright proprietor has sought to

comply with the provisions of this Act with respect to notice, the

omission by accident or mistake of the prescribed notice from a

particular copy or copies shall not invalidate the copyright or prevent

recovery for infringement against any person who, after actual notice of

the copyright, begins an undertaking to infringe it, but shall prevent

the recovery of damages against an innocent infringer who has been

misled by the omission of the notice; and in a suit for infringement no

permanent injunction shall be had unless the copyright proprietor shall

reimburse to the innocent infringer his reasonable outlay innocently

incurred if the court, in its discretion, shall so direct."

{Sidenote: Place of notice}

It is further provided (sec. 19): "That the notice of copyright shall be

applied, in the case of a book or other printed publication, upon its

title-page or the page immediately following, or if a periodical either

upon the title-page or upon the first page of text of each separate

number or under the title heading, or if a musical work either upon its

title-page or the first page of music: _Provided_, That one notice of

published shall suffice."

Although the code of 1909 relieves the copyright proprietor from

permanent forfeiture in the case of an accidental omission of the

specific, and there seems to be no means of relief where the copyright

notice is, however innocently, in the wrong place or in the wrong form.

Thus in 1909, in Freeman _v._ Trade Register, the U. S. Circuit Court

held that where the copyright notice of a periodical appeared on the

editorial page, which was not the first page of text, the copyright was

voided. The copyright notice can probably, however, be placed safely and

preferably on the first page, being the title-page, of a specially

copyrighted part of a book, as an introduction preceding a non-copyright

work or an index or appended notes, or upon specific illustrations; and

this is perhaps preferable in copyrighting editions with such features

of works otherwise in the public domain. In the case of articles in a

periodical or parts of a composite work separately copyrighted or

registered, the copyright notice should appear on the same page as the

title heading.

{Sidenote: One notice sufficient}

The proviso (sec. 19) that one notice of copyright in each volume or in

each number of a periodical shall suffice is complementary to the

provision (sec. 3) by which a copyright protects all the copyrightable

component parts of the work copyrighted, and gives to the proprietor of

a composite work or periodical all the rights he would have if each part

were individually copyrighted. It means that there need be no repetition

of the general copyright notice on different portions of a book or

periodical. In West Pub. Co. _v._ Thompson Co., under the old law, Judge

Ward, in the U. S. Circuit Court of Appeals in 1910, overruled the

defense that the copyright was not valid because the copyright notice

did not repeat the several copyright notices originally protecting the

several parts of the compilation; and this view, that the general

now specifically embodied in the statute.

{Sidenote: Separate volumes}

{Sidenote: Different dates}

The proviso (sec. 61) "that only one registration at one fee shall be

required in the case of several volumes of the same book deposited at

the same time" indicates that one copyright entry suffices for several

volumes simultaneously published, but each separate volume should

contain the notice. Volumes published separately, not only in successive

years but at successive dates within the year, should be separately

registered, and if published separately in successive years, must each

bear its copyright notice for the year of publication--this being the

direct sequence from the provision that copyright runs from the specific

date of publication and not from the year or date of registration. The

volumes or parts deposited at the same time, though published at various

times. In the case of a book issued in successive parts, of which only

the first part includes a title-page or title headings, the law is not

specific; but it seems probable that, in default of copyright notice and

registration for each part, the parts not bearing copyright notice might

be legally reprinted, and that the safer course is to place the

separately, in which case the completed work should have the date or

dates of the year or years within which the several parts were

published. There seem to be no objections, within the law or from court

decisions, to coupling two dates in the same notice, in such cases as

"Copyright, 1910, 1911, by A. B.," though there is no specific decision

on this point. Under the previous law a book published in more than one

volume or part, the portions not complete in themselves, was probably

protected by copyright entry of the first part, all parts being of

course ultimately deposited; but the change in the new code basing

practice. In the case of Dwight _v._ Appleton, in 1840, it was held that

as the statute did not expressly prescribe that the copyright notice

should appear in successive volumes after the first, this was not

necessary; but the application of this doubtful decision under the new

code would be more than questionable.

{Sidenote: Notice part of initial step}

It may be emphasized that publication with notice is the first step in

secondary and completing act, and therefore that no registry in the

notice, as was formerly the case.

{Sidenote: Extraterritorial notice}

The requirement (sec. 9) that the notice of copyright "shall be affixed

to each copy published or offered for sale in the United States by

authority of the copyright proprietor" makes clear what was a subject of

dispute under the old law. The courts, however, generally held that

extraterritorial notice of copyright, _i. e._ on foreign editions, was

impracticable and unnecessary; and this view is specifically adopted in

the new code. In 1905, in Harper _v._ Donohue, it was held by Judge

Sanborn, in the U. S. Circuit Court, that the omission of the American

here, especially in view of the prohibition in the law of the

importation of foreign-made copies of copyright works. In 1908, in

Merriam _v._ United Dictionary Co., it was held by the U. S. Supreme

Court, through Justice Holmes, that even where the omission of the

notice on a foreign-made edition was with the assent of the American

{Sidenote: Successive editions}

In the case of successive printings or editions of a copyrighted book,

the original copyright entry must appear in every reprint of the first

edition; and it would seem that this entry should also appear in every

new edition newly copyrighted, as well as the new notice, so long as it

is desired to protect the matter contained in the old edition. Judge

Clifford, in the U. S. Circuit Court, in Lawrence _v._ Dana, in 1869,

ruled this to be superfluous; but his decision is contrary to the rule

that a proprietor may not claim through the copyright notice a longer

term than the law permits, since a later date, referring only to new

matter, but apparently comprehensive of the whole contents, might be

voided under this rule. It is doubtful whether on a new edition with old

and new matter one copyright notice with two dates is safe, and the

wiser course is to give both the earlier copyright notice and the later

notice in proper sequence. In the case of new printings of works

published and copyrighted prior to July 1, 1909, no new notice or

application is required unless there is added material to be

additionally protected and constituting to that extent a new work, in

which case a new application and the deposit of two copies is necessary.

{Sidenote: False copyright notice}

Provision is specifically made against false notice of copyright by the

enactment (sec. 29): "That any person who, with fraudulent intent, shall

insert or impress any notice of copyright required by this Act, or words

of the same purport, in or upon any uncopyrighted article, or with

fraudulent intent shall remove or alter the copyright notice upon any

article duly copyrighted shall be guilty of a misdemeanor, punishable by

a fine of not less than one hundred dollars and not more than one

thousand dollars. Any person who shall knowingly issue or sell any

article bearing a notice of United States copyright which has not been

copyrighted in this country, or who shall knowingly import any article

bearing such notice or words of the same purport, which has not been

copyrighted in this country, shall be liable to a fine of one hundred

dollars," and the importation of any article bearing a notice of

(sec. 30).

{Sidenote: Ad interim protection}

It should be noted that the copyright notice is not required on books

published abroad in the English language before publication in this

country, entered for _ad interim_ copyright, and therefore that within

sixty days after the publication abroad of a book in the English

language, such book may be protected by American registration, though

containing no notice of copyright; and within this period inquiry at the

{Sidenote: Substitution of name}

It is provided (sec. 46): "That when an assignment of the copyright in a

specified book or other work has been recorded the assignee may

substitute his name for that of the assignor in the statutory notice of

name in the copyright notice under any other circumstances, as partial

assignment. Substitution without authority of law voids copyright, as

was held in Record & Guide Co. _v._ Bromley in 1910, where another trade

name of the copyright claimant was substituted for the original trade

name.

{Sidenote: Registration}

The method of registration, or rather of application therefor, is not

specified in the law, for the reason that under the code of 1909 deposit

succeeding publication is made the act completing the securing of

requisite. Under the old law it was decided in the U. S. Circuit Court

through Judge Colt, in Gottsberger _v._ Estes, that publication before

deposit of copies voided the copyright.

{Sidenote: Rules and regulations}

The act provides (sec. 53): "That, subject to the approval of the

Librarian of Congress, the Register of Copyrights shall be authorized to

make rules and regulations for the registration of claims to copyright

as provided by this Act," and (sec. 54) "whenever deposit has been made

in the Copyright Office of a copy of any work under the provisions of

this Act, he shall make entry thereof."

{Sidenote: Application}

It is provided (sec. 5): "That the application for registration shall

specify to which of the [stated] classes the work in which copyright is

claimed belongs," but it is also provided "nor shall any error in

classification invalidate or impair the copyright protection." In Green

_v._ Luby, in 1909, the U. S. Circuit Court protected a vaudeville

sketch, though classified as a dramatic instead of a dramatico-musical

{Sidenote: Certificate}

It is further provided (sec. 55): "That in the case of each entry the

person recorded as the claimant of the copyright shall be entitled to a

certificate of registration under seal of the Copyright Office, to

contain his name and address, the title of the work upon which copyright

is claimed, the date of the deposit of the copies of such work, and such

marks as to class designation and entry number as shall fully identify

the entry. In the case of a book the certificate shall also state the

receipt of the affidavit as provided by section sixteen of this Act, the

date of the completion of the printing, or the date of the publication

of the book, as stated in the said affidavit. The Register of Copyrights

shall prepare a printed form for the said certificate, to be filled out

in each case as above provided for, which certificate, sealed with the

seal of the Copyright Office, shall, upon payment of the prescribed fee,

be given to any person making application for the same, and the said

certificate shall be admitted in any court as _prima facie_ evidence of

the facts stated therein. In addition to such certificate the Register

of Copyrights shall furnish, upon request, without additional fee, a

receipt for the copies of the work deposited to complete the

registration."

{Sidenote: Application requirements}

The application is in general in simple form, and care should be taken

in filling out the card that the space at the top intended for use by

the Copyright Office should be left blank. The application must be

signed with the name and address of the copyright claimant, who may be

the author or his representative, as where his publisher is taking out

the copyright. In the case of works made for hire, the employer may make

application as author. The name of the author should be given on the

line provided for that purpose, even though the name of the author as

claimant is also given above; but in the case of anonymous or

pseudonymous works, the name of the author is not required. The title

should be given exactly as on the title-page of the book or on the work,

and the other particulars called for in the application should be

exactly as indicated by the work itself. The day of publication must be

exactly stated, and the application cannot be made, therefore, until

_after_ publication. Provision is also made on the card for the name and

address of the person to whom the certificate of registration is to be

sent and of the remitter of the fee, and in the case of books, the

application must be accompanied by the affidavit made either on the

reverse of the application card or on the separate card also provided.

In applications, as for foreign or _ad interim_ copyright, where the

nationality of the author should be stated, information as to

citizenship, not race, is required. A person naturalized in the United

States is defined as an American. A foreign author claiming copyright

because of residence, must state that he is a "permanent resident" of

the United States (C. O. Rule 29).

{Sidenote: Illustrations}

The illustrations of a book may be separately registered, and if by

lithographic or photo-engraving process must also have affidavit of

manufacture in this country.

Maps and charts are classed with works of art, and the formalities in

respect to these, as well as in respect to dramatic and musical

compositions, are treated specifically in the chapters on those specific

subjects.

{Sidenote: Periodicals}

In respect to periodicals, application should be made as for books, but

no affidavit is required; separate registration is necessary for each

number published, with notice of copyright, and can be made only after

publication. It is not possible to register the title of the periodical

in advance of publication. (C. O. Rule 36.) Two deposit copies of

periodicals are required; but a contribution to a periodical separately

registered requires the deposit of only one copy of the periodical. The

entire copy should be sent, as a mere clipping does not comply with the

statute. (C. O. Rule 37.) The date of publication of a periodical is not

necessarily the printed date of issue, and the actual day of publication

should be stated in the application, whether for the registration of the

periodical itself or a contribution to it.

{Sidenote: Application cards}

The Copyright Office has prepared blank forms in library card shape,

which are furnished applicants free of charge, for the several classes

of applications mentioned in the law, the cards being in _pink_, except

as hereafter stated, lettered and numbered as follows: (A1) book by

citizen or resident of the United States; (A1. New ed.) new edition of

book by citizen or resident of the United States; (A1 for.) book by

citizen or resident of a foreign country, but manufactured in the United

States; (A2) edition printed in the United States of book originally

published abroad in the English language, all these being double cards

including affidavit of American manufacture--supplemented by _blue_

cards providing with specific instructions, (A1) for separate affidavit

of American manufacture from type set or plates made in the United

States, and (A2) for lithographic or photo-engraving process within the

United States; (A3) book by foreign author in foreign language; (A4) _ad

interim_ copyright--book published abroad in the English language; (A5)

contribution to a newspaper or periodical; (B1) periodical,--for

registration of single issue; (B2) periodical,--general application and

deposit, supplemented by a _white_ blank for depositing single

subsequent issues; (C) lecture, sermon, or address prepared for oral

delivery; (D1) published dramatic composition; (D2) dramatic composition

not reproduced for sale; (D3) dramatico-musical composition; (E1)

published musical composition; (E2) musical composition not reproduced

for sale--these supplemented by a _blue_ card (_U_), notice of use on

mechanical instruments; (F) published map; (G) work of art (painting,

drawing, or sculpture), or model or design for a work of art; (H)

reproduction of a work of art; (I) drawing or plastic work of a

scientific or technical character; (J1) photograph published for sale;

(J2) photograph not reproduced for sale; (K) print or pictorial

illustration; (R1) renewal of copyright subsisting in any work; (R2)

extension of a renewal copyright subsisting in any work. Thus an

applicant for copyright on an American book should send for card (A1),

on which he may enter his application and also include affidavit as to

American type setting, printing, and binding; if he wishes the affidavit

to be separately made he should obtain also the special _blue_ card

(_A_1), or if lithographic or photo-engraving is used he should obtain

also the special _blue_ card (_A_2). A dramatic applicant should send

for card (D1) or card (D3), respectively, for the entry of a dramatic or

dramatico-musical composition; or for (D2) if he desires to copyright

without reproducing for sale. The applicant for a musical composition,

as distinguished from a dramatico-musical work, should send for card

(E1) or (E2) respectively. The art applicant should send for card (G)

for an original work of art, or card (H) for a reproduction, or for a

photograph card (J1) or card (J2) respectively.

{Sidenote: Certificate cards}

Similar certificate cards, also of library size, uniformly _white_, are

provided for the several classes of registration, correspondingly

lettered and numbered, except in a few cases where one certificate form

serves for more than one class or subdivision, with the addition of a

general form (Z) to cover anything unprovided for in the other

certificate forms. The certificate bears on one side the uniform

statement of the deposit of two copies or one copy of the article named

herein, and of registration for the first or renewal term, with the name

of the claimant (printed in the case of a few of the publishers making

most applications), and on the other side the specification (following

the wording of the application and the deposit copy) of the title or

description, date of publication, receipt of affidavit (where required),

receipt of copies and entry number by class, together with the seal of

the Copyright Office.

{Sidenote: Fees}

This certificate is sent without charge other than the fees directly

provided for in the law (sec. 61), viz., "for the registration of any

work subject to copyright, deposited under provisions of this Act, one

dollar, which sum is to include a certificate of registration under

seal: _Provided_, That in the case of photographs the fee shall be fifty

cents where a certificate is not demanded. For every additional

certificate of registration made, fifty cents.... For recording the

extension or renewal of copyright provided for in sections twenty-three

and twenty-four of this Act, fifty cents." The law no longer

contemplates record before publication, and it is unnecessary and

undesirable to send application or money previous to sending of deposit

copies. In fact, as the certificate must show date of publication,

publication _cannot_ be anticipated, and money sent in advance, for

individual registrations, is only an embarrassment to the Copyright

Office. The Office will, however, receive advance deposits from

publishers of periodicals or other publishers making frequent

registrations, against which each registration will be charged. Fees

should be sent by money order, or at the remitter's risk, in currency

(but not in stamps). Bank drafts and certified checks are accepted in

practice, though the Register of Copyrights cannot legally receive

checks except at his personal risk and therefore from persons known to

him as in frequent relation with the Copyright Office. Postage must be

prepaid on the signed application, as there is no provision for free

transmission through the mails, such as applies to deposit copies. In

practice the application with remittance and the deposit copies should

be simultaneously sent immediately after publication.

{Sidenote: Deposit}

The law provides that deposit copies shall be sent _promptly_ after

publication, and that _two complete_ copies of the _best_ edition then

published (or one copy in case of a contribution to a periodical or for

identification of a work not reproduced for sale) shall be deposited;

and if a work is published with notice of copyright, and copies are not

promptly deposited, the copyright is voided and the proprietor becomes

subject to penalty three months (or in case of outlying possessions or

foreign countries six months) after formal demand by the Register of

Copyrights for deposit copies. The word "promptly" is indefinite and has

been vaguely construed to mean "without unnecessary delay," but this

does not mean the very day of publication (C. O. Rule 22). The status of

undeposited works published with copyright notice and not formally

demanded by the Register of Copyrights, is also not defined by the law.

In such case the copyright has not been perfected by the completing act,

and it would be impracticable to proceed against an infringer, and the

proprietor might be liable to penalty for false notice of copyright. In

the event of such a case arising, through carelessness or otherwise, the

courts would have to decide the question by definition of the word

"promptly" and an interpretation of the implication that copyright is

voided, meaning that the right to obtain copyright lapses, if the

process is not completed without undue delay.

{Sidenote: Fragment not depositable}

The deposit copy must be the complete work; a fragment is not a work,

and a part of a work cannot be copyrighted, especially as this would

nullify the manufacturing clause, as set forth in the opinion of the

Attorney-General, February 9, 1910.

{Sidenote: Typewriting publication and deposit}

A work may be published and deposited in typewriting copies, as set

forth in the opinion of the Attorney-General of May 2, 1910, but this

will not operate to avoid the manufacturing clause when the work is

published in print.

{Sidenote: Legal provisions}

The completion of the copyright by deposit of copies is covered by the

provision (sec. 12): "That after copyright has been secured by

publication of the work with the notice of copyright as provided in

section nine of this Act, there shall be promptly deposited in the

Washington, District of Columbia, two complete copies of the best

edition thereof then published, which copies, if the work be a book or

periodical, shall have been produced in accordance with the

manufacturing provisions specified in section fifteen of this Act; or if

such work be a contribution to a periodical, for which contribution

special registration is requested, one copy of the issue or issues

containing such contribution; or if the work is not reproduced in copies

for sale, there shall be deposited the copy, print, photograph, or other

identifying reproduction provided by section eleven of this Act, such

copies or copy, print, photograph, or other reproduction to be

accompanied in each case by a claim of copyright. No action or

proceeding shall be maintained for infringement of copyright in any work

until the provisions of this Act with respect to the deposit of copies

and registration of such work shall have been complied with."

{Sidenote: Voiding by failure to deposit}

In case of failure to deposit, the law of 1909 provides for penalties

and finally voiding of the copyright, as follows (sec. 13): "That should

the copies called for by section twelve of this Act not be promptly

deposited as herein provided, the Register of Copyrights may at any time

after the publication of the work, upon actual notice, require the

proprietor of the copyright to deposit them, and after the said demand

shall have been made, in default of the deposit copies of the work

within three months from any part of the United States, except an

outlying territorial possession of the United States, or within six

months from any outlying territorial possession of the United States, or

from any foreign country, the proprietor of the copyright shall be

liable to a fine of one hundred dollars and to pay to the Library of

Congress twice the amount of the retail price of the best edition of the

work, and the copyright shall become void."

{Sidenote: Forfeiture by false affidavit}

In the case of a printed book or periodical or of a lithograph or

photo-engraving, the copies deposited must be manufactured in America,

as set forth in the manufacturing provision (sec. 15) as verified in the

case of a book by affidavit (sec. 16) separately treated hereafter, and

the book copyright is forfeited (sec. 17) in the event of false

affidavit. Thus failure to deposit, and, in the case of books, false

affidavit as to American manufacture, are the two lapses of formalities

which work forfeiture of copyright.

{Sidenote: Works not reproduced}

In the case of works not reproduced for sale, copyright may be secured

under the provision (sec. 11): "That copyright may also be had of the

works of an author of which copies are not reproduced for sale, by the

deposit, with claim of copyright, of one complete copy of such work if

it be a lecture or similar production or a dramatic or musical

composition; of a photographic print if the work be a photograph; of a

photograph or other identifying reproduction thereof if it be a work of

art or a plastic work or drawing. But the privilege of registration of

from the deposit copies under sections twelve and thirteen of this Act

where the work is later reproduced in copies for sale." The entire work

should in each case be deposited (C. O. Rule 18) and not a mere outline,

epitome or scenario; and the copy should be in convenient form, clean

and legible, with the leaves securely fastened together, and should bear

the title of the work exactly as given in the application.

{Sidenote: Second registration}

It should be noted that in this class of copyright, which is a common

law copyright fortified by statutory protection, an ideal example of

copyrighted work is published, requiring one application fee and deposit

of one identifying copy for the unpublished work and a second

application fee and deposit of two copies promptly after publication.

{Sidenote: Free transportation in mail}

It should be noted that the deposit copies may be deposited either in

the Copyright Office or "in the mail addressed to the register of

copyrights," and it is provided (sec. 14): "That the postmaster to whom

are delivered the articles deposited as provided in sections eleven and

twelve of this Act shall, if requested, give a receipt therefor and

shall mail them to their destination without cost to the copyright

claimant." Franking labels are not required and are no longer issued by

the Copyright Office. Deposit copies, and all mail matter, should be

addressed to the "Register of Copyrights, Library of Congress,

Washington, D. C.," and not to any person by name.

{Sidenote: Loss in mail}

Thus even if the deposit copies should not reach Washington, as in case

they were burned in the mail, the copyright proprietor can validate his

claim by production of the postmaster's receipt in lieu of deposit

copies.

{Sidenote: Foreign works}

In respect to foreign works, it should be noted that "the original text

of a work of foreign origin in a language or languages other than

English," may be formally copyrighted and fully protected by

registration under the same formalities as domestic works except that

the deposit copies need not be manufactured within the United States,

thus giving the author the exclusive right of translation. Copies

published for use in America must of course bear the copyright notice. A

translation into English from such text cannot be copyrighted unless the

deposit copies of the English translation are manufactured within the

United States; and this holds true also in respect to translations into

a language other than English, as it is only "the original text" which

can be copyrighted without American manufacture.

{Sidenote: Ad interim deposit}

In respect to books published abroad in the English language, _ad

interim_ protection is assured by the provision (sec. 21): "That in the

case of a book published abroad in the English language before

publication in this country, the deposit in the Copyright Office, not

later than thirty days after its publication abroad, of one complete

copy of the foreign edition, with a request for the reservation of the

of the copyright proprietor and of the date of publication of the said

book, shall secure to the author or proprietor an _ad interim_

by this Act, and shall endure until the expiration of thirty days after

such deposit in the Copyright Office."

{Sidenote: Completion of ad interim copyright}

On such works the provisional copyright is made permanent under the

provision (sec. 22): "That whenever within the period of such _ad

interim_ protection an authorized edition of such book shall be

published within the United States, in accordance with the manufacturing

provisions specified in section fifteen of this Act, and whenever the

provisions of this Act as to deposit of copies, registration, filing of

affidavit, and the printing of the copyright notice shall have been duly

complied with, the copyright shall be extended to endure in such book

for the full term elsewhere provided in this Act."

The _ad interim_ provision requires the same formalities and fee as in

the case of domestic works, except that only one copy of the foreign

work in English need be deposited, and that this deposit copy need not

contain the statutory notice of American copyright. The claimant is

given thirty days after publication abroad in which to request

reservation and a second thirty days after deposit of the foreign copy

within which to publish or cause to be published an edition manufactured

in America and thus to complete his copyright. This gives a period of

_ad interim_ protection, ranging from thirty days to sixty days, within

which to obtain permanent copyright, the exact period depending upon the

number of days elapsing after publication before deposit of the foreign

copy in the Copyright Office. Thus a copy deposited on the day of

publication will have thirty days in all within which to secure

permanent copyright by the publication of the American-made edition,

while a copy deposited on the thirtieth day after publication will have

sixty days in all; but the failure to deposit the foreign copy within

thirty days after publication, or the failure to publish an

American-made edition within thirty days after such deposit, will

forfeit the right to obtain copyright protection and throw the foreign

work into the public domain, despite the _ad interim_ registration. When

an American-made edition with notice of copyright can be published in

America simultaneously with its publication abroad, _ad interim_

protection is of course rendered unnecessary; and such simultaneous

publication is the simplest and best practice for publishers to adopt.

{Sidenote: Omission of copyright notice}

It may also be emphasized here that the notice of copyright can be

omitted only from foreign-made copies and must be included in the

American-made edition. The American publisher desiring to reprint a book

published abroad in the English language within sixty days after

publication, without consent of the copyright proprietor, must therefore

assure himself, by inquiry from the Copyright Office, whether the work

has been registered _ad interim_. The printing of an American copyright

notice on the foreign edition in anticipation of the publication of an

American-made edition and the deposit of copies thereof within the

statutory requirements is a questionable practice, as a failure to

publish American-made copies in the United States, because of defective

publishing arrangements or a printers' or binders' strike, would make

such notice a false notice of copyright. The copyright term in the case

of such foreign work in the English language dates, it would seem, from

the date of publication abroad rather than from the date of publication

of the American-made edition; but this would be of importance only

toward the expiration of the original term and in connection with the

renewal term.

{Sidenote: Books only ad interim}

_Ad interim_ protection seems to be confined exclusively to a book as

such, and therefore does not apply to articles in periodicals.

{Sidenote: American authors not thus protected}

It should be noted that an American author publishing his work abroad is

not benefited by either of these provisions respecting foreign works.

The provision regarding works in other languages is specifically

confined to a work of foreign origin, that is, not by an American

author; and he gains nothing, if his work is in English, from _ad

interim_ protection. Thus an American author publishing his work first

in German in Berlin, must copyright and deposit an American-made edition

of his German text in this country to obtain American protection,

without which his work in German could be imported into this country

without his consent, and an independent translation of his text into

English and its publication in America could not be prevented.

{Sidenote: Exact conformity required in formalities}

In view of the exact prescription of the method of securing copyright,

unless the statute is precisely complied with the copyright is not

valid. Said Judge Sawyer, in 1875, in Parkinson _v._ Laselle: "There is

no possible room for construction here. The statute says no right shall

attach until these acts have been performed; and the court cannot say,

in the face of this express negative provision, that a right shall

attach unless they are performed. Until the performance as prescribed,

there is no right acquired under the statute that can be violated." And

in the case of the play "Shaughraun," Boucicault _v._ Hart, in 1875,

Justice Hunt held, as regards copyrights in general: "Two acts are by

the statute made necessary to be performed, and we can no more take it

upon ourselves to say that the latter is not an indispensable requisite

to a copyright than we can say it of the former." The Supreme Court laid

down this general doctrine in Wheaton _v._ Peters, in reference to the

statutes of 1790 and 1802, and the later statutes are most explicit on

this point. In the same case of Wheaton _v_. Peters, Justice McLean, in

delivering the judgment of the Supreme Court, held that while the right

"accrues," so that it may be protected in chancery, on compliance with

the first requirement of the prescribed process, it must be perfected by

complying with the other requisites before a suit at law for violation

of copyright can be maintained.

{Sidenote: Expunging from registry}

A false or unjustifiable entry of copyright may be expunged from the

registry by court order, as was done in the English case _Re_ Share

Certificate Book in 1908.

{Sidenote: British formalities}

The statutory formalities of copyright in other countries vary greatly.

In Great Britain copyright has been secured by first (or simultaneous)

publication within the British dominions or under the "international

book must be deposited in the British Museum, this giving basis for

proof of publication, which deposit must be made within one month after

publication if published within London, three months elsewhere in the

United Kingdom, and one year in other parts of the British dominions;

the failure to deposit did not forfeit copyright, but involved a fine;

but under the international copyright provisions, deposit in the British

Museum of a colonial or foreign work was not required, though useful as

_prima facie_ evidence of publication. Four other copies of domestic

books must be supplied to the universities of Oxford, Cambridge,

Edinburgh and Dublin if demanded within twelve months from publication.

Registration at Stationers' Hall was necessary for books only as a

prerequisite to an action at law against infringement, but was

obligatory in the case of paintings, drawings and photographs. Copyright

notice on a book was not required except to reserve the right of

representation of a dramatic work, etc., though it has been customary

equivalent to the copyright notice. But copyright notice was required to

protect sculpture, engravings and musical compositions and in respect to

oral lectures.

{Sidenote: The new British code}

The new British code bases copyright for all published works on first

publication within "the parts of His Majesty's dominions to which this

Act extends" or as provided for in colonial or international

arrangements--copyright of unpublished works depending upon British

citizenship or residence at the time of making. Delivery of copies to

the British Museum and on demand to the other libraries is required from

the publisher of every book published in the United Kingdom, but on

penalty of five pounds and the value of the book and not of forfeiture

of copyright. The National Library of Wales is entitled to a sixth copy,

in prescribed classes of books. Registration is no longer made a

condition or circumstance of copyright.

Most of the British colonies have followed the precedent of the mother

country, with slight variation, in their domestic legislation. Canada

and Newfoundland, following the precedent of the United States, require

{Sidenote: Other countries}

France requires deposit of two copies upon publication, and registration

is required prior to a suit for infringement. Germany requires the

registration of the name of the author of anonymous or pseudonymous

works as the condition for copyright, but otherwise grants copyright

practically as natural right without requiring formalities. The greater

number of copyright countries do not impose any formalities except for

specific privileges as the right of translation, of representation or of

reproduction in the case of periodical contributions; or for special

subjects as works of art, musical compositions, telegraphic messages,

where these are protected, and oral lectures. Deposit of copies is,

however, generally required, either before putting the book on the

market or before circulation, or upon publication, or else within a

specified time after publication, ranging from ten days in the case of

Greece to two years in the case of Brazil, while in several countries no

specific time is mentioned. In Italy, if no deposit of a registered work

is made within ten years, the copyright is considered to be abandoned.

The number of copies required varies in the several countries from one

to six. In some countries specific formalities are required to establish

the beginning of the term of protection for collective or posthumous

works, etc., or in connection with the disclosure of the author's name

on anonymous or pseudonymous works. Spain, Colombia and Panama, and

Costa Rica have a curious provision that if a work is not registered

within one year from publication the copyright is forfeited for ten

years, at the end of which period it may be recovered by registration.

Canada and Newfoundland, following the United States precedent,

Australia, Holland and the Dutch colonies, and Siam require manufacture

within the country. In several countries penalty for failure to deposit

is provided, the limit being usually the value of a book and a sum not

exceeding L5, or in France 300 francs. The deposit of a photograph or

sketch of a work of art is in many countries required for purposes of

identification.

{Sidenote: International provisions}

International copyright throughout the countries of the International

Aires conventions are ratified throughout, will depend, as now it

depends for most countries, entirely on the formalities in the country

of origin.

THE AMERICAN MANUFACTURING PROVISIONS

{Sidenote: Manufacturing provision of 1891}

In the American law of 1891, embodying the "international copyright

amendment" which for the first time permitted the copyright in the

United States of works by foreign authors not resident in this country,

the copyright of books was conditioned on the manufacture within the

United States, and this condition was made applicable also to American

authors.

{Sidenote: Text in 1909 code}

The American code of 1909 follows this precedent in making manufacture

within the United States a _sine qua non_ of copyright for printed books

and periodicals, lithographs and photo-engravings, under the following

provision (sec. 15), commonly cited as the manufacturing provision:

"That of the printed book or periodical specified in section five,

subsections (a) and (b) of this Act, except the original text of a book

of foreign origin in a language or languages other than English, the

text of all copies accorded protection under this Act, except as below

provided, shall be printed from type set within the limits of the United

States, either by hand or by the aid of any kind of type-setting

machine, or from plates made within the limits of the United States from

type set therein, or, if the text be produced by lithographic process,

or photo-engraving process, then by a process wholly performed within

the limits of the United States, and the printing of the text and

binding of the said book shall be performed within the limits of the

United States; which requirements shall extend also to the illustrations

within a book consisting of printed text and illustrations produced by

lithographic process, or photo-engraving process, and also to separate

lithographs or photo-engravings, except where in either case the

subjects represented are located in a foreign country and illustrate a

scientific work or reproduce a work of art; but they shall not apply to

works in raised characters for the use of the blind, or to books of

foreign origin in a language or languages other than English, or to

books published abroad in the English language seeking _ad interim_

protection under this Act."

{Sidenote: Scope and exceptions}

This manufacturing provision requires that every "book" except the

original text of a book of foreign origin, _i. e._, not by an American

writer in a language or languages other than English, or a book

published abroad in the English language seeking _ad interim_

protection, or a book in raised characters for the use of the blind, can

obtain American copyright whether by an American or foreign author, only

in case the type is set, the plates made and lithographic or

photo-engraving text or illustrations produced and the work printed and

bound within the limits of the United States--inclusive, presumably, of

the outlying dependencies. The provision extends to periodicals, though

these are not subjected to the affidavit clause, and periodicals

containing authorized copyrighted material are not prohibited from

importation. The provisions extend also to lithographs or

photo-engravings, issued separately as well as for book illustration,

unless these represent foreign subjects or illustrate a scientific work

or reproduce a work of art.

{Sidenote: Changes 1891-1909}

The provision of 1909 differs from the provision of 1891 in requiring

that a book should be from plates type-set as well as made, and be

printed and bound, within the United States, in adding periodicals and

by omitting photographs and dropping the word chromo, and including

photo-engravings as well as lithographs. The inclusion of binding in the

manufacturing provision met with especial opposition, on the ground that

binding is not an integral part of, but an incidental addition to, a

completed book.

{Sidenote: German-American instances}

The effect of these provisions, to cite specific instances, is that an

original German text by a non-American author is exempt from the

manufacturing provisions, but that a French translation or an English

translation is not, and that an original German work by an American

author must be manufactured in this country to obtain protection, and

that the American author printing his work in English abroad may claim

_ad interim_ protection but can obtain no substantial benefit from it.

In case a German-American citizen, or German resident of this country,

writes a book in the German language and prints it first in Berlin, he

can have no American copyright in the German edition; and if copies of

such an edition, without copyright notice, should reach the United

States previous to manufacture and publication of the work here, any one

would have the right to reprint print it, and the work would be

practically dedicated to the public, while the copyright notice could

not be affixed to such foreign printed edition without violation of the

law. If, however, the German work were a translation made by or for the

author of a work written in English, the general copyright of the

English work would cover the German edition, but the German copies could

not then be imported.

{Sidenote: Dramas excepted}

A drama copyrightable as such under subsection (d) is not subject to the

manufacturing provision, unless classified as a book under subsection

(a). A printed drama was held not to be subject as a book to the

manufacturing provision in Hervieu _v._ Ogilvie, in the U. S. Circuit

Court, by Judge Martin in 1909, and this decision under the old law is

applicable to the new code.

{Sidenote: Exception of foreign original texts}

The exception of "the original text of a book of foreign origin in a

language or languages other than English,"--drafted by the author of the

present volume, introduced at the instance of the American (Authors)

representatives of the typographical unions responsible for the

manufacturing provision,--was included to assure a real reciprocity in

is repeated toward the close of the section in the somewhat wider phrase

"books of foreign origin in a language or languages other than English,"

which omits restriction to "the original text"; but it is probable that

the second phrasing would be construed in conformity with the first, as

the evident intention of the law.

{Sidenote: Exception of foreign illustrative subjects}

The exception from lithographs and photo-engravings of subjects which

"are located in a foreign country and illustrate a scientific work or

reproduce a work of art" is intended to permit the importation, either

separately or for book use, of direct reproductions made abroad of

scenes or objects which otherwise could be reproduced in this country

only indirectly and at second-hand; the confusing and probably careless

use of the word "and" might seem to exclude from the exemption a

lithograph or photo-engraving of a natural scene, illustrating a work of

travel, but the courts might here feel justified in taking the more

liberal view.

{Sidenote: Affidavit requirement}

To the manufacturing provision of the previous law has been added a new

affidavit requirement (sec. 16) as follows:

"That in the case of the book the copies so deposited shall be

accompanied by an affidavit, under the official seal of any officer

authorized to administer oaths within the United States, duly made by

the person claiming copyright or by his duly authorized agent or

representative residing in the United States, or by the printer who has

printed the book, setting forth that the copies deposited have been

printed from type set within the limits of the United States or from

plates made within the limits of the United States from type set

therein; or, if the text be produced by lithographic process, or

photo-engraving process, that such process was wholly performed within

the limits of the United States, and that the printing of the text and

binding of the said book have also been performed within the limits of

the United States. Such affidavit shall state also the place where and

the establishment or establishments in which such type was set or plates

were made or lithographic process, or photo-engraving process or

printing and binding were performed and the date of the completion of

the printing of the book or the date of publication."

{Sidenote: Avoidance of errors}

In preparing the affidavit, which is necessary for books only, the

applicant should be careful to note the following points, as to which

errors are commonly made. The affidavit should correspond exactly with

the application (as that with the title-page or other data in the work

itself). The affidavit cannot be made till _after_ publication and must

state the exact day of publication or the date of completion, either or

both, which last means not necessarily the completion of printing the

whole edition, but of the deposit copies. The affidavit must be taken

and signed by an individual, not by a corporation, company or firm as

such, and the affiant must state whether he is the claimant, agent of

the claimant, or printer, striking out the other designations. The name

of the printer and binder must be given in the affidavit with city and

state (but not street) address; but this means the printing and binding

establishment and not the individual type-setter or binder. If the book

is not bound but only issued in paper, the word "unbound" should be

written into the affidavit. It is necessary to give the _venue_, that

is, the county and state in which the affidavit is made, and to take the

oath before a notary or other official authorized to take such oath in

that locality (not merely a justice of the peace). The affiant's and

notary's names should be signed exactly as written into the body of the

affidavit, and the seal should correspond exactly with the name of the

official and the _venue_. The signature of the affiant and of the notary

and the seal are all necessary to validate the affidavit. The names and

other writing should be written plainly, and the affiant should make

sure to read the affidavit and compare it with the application and with

the book.

{Sidenote: Forfeiture by false affidavit}

In case of false affidavit, forfeiture of copyright is provided (sec.

17) as follows:

"That any person who, for the purpose of obtaining registration of a

claim to copyright, shall knowingly make a false affidavit as to his

having complied with the above conditions shall be deemed guilty of a

misdemeanor, and upon conviction thereof shall be punished by a fine of

not more than one thousand dollars, and all of his rights and privileges

under said copyright shall thereafter be forfeited."

{Sidenote: Exact compliance necessary}

The affidavit clause is exact and specific. It may be made either by

the printer or the publisher. This exacting and drastic addition to the

manufacturing clause met with strong opposition from the friends of

unreasonable, but was successfully insisted upon by the representatives

of the typographical unions. The voiding of copyright because of a false

affidavit by a printer or publisher, which might even be mistakenly made

and of which the author would have no cognizance, was opposed as

especially unjust to authors and out of keeping with the rest of the

law. Under the statute as enacted, this provision must be exactly

complied with, and the courts would doubtless enforce it to the letter.

{Sidenote: Importation questions}

The manufacturing provision of 1891 and its extension in the code of

1909 have raised important and difficult questions as to the time at

which these provisions become effective in relation with copyrights

previously existing. It was claimed by Benziger Brothers, as proprietors

of a copyright American edition of the "Key of Heaven," that an edition

of sheets printed in America previous to the law of 1909 and sent abroad

for binding, could be re-imported notwithstanding the new provision

against binding, but the decision of the appraisers at New York against

this claim was upheld by the Secretary of the Treasury, under advice of

the Attorney-General, and the courts have not yet had occasion to pass

on the question. This ruling indicates that since July 1, 1909,

and bound completely within the limits of the United States, and that

any copyrighted books, partly manufactured in the United States, but

bound and otherwise completed abroad since July 1, 1909, must be denied

importation. It has been decided, however, by the Attorney-General, that

the manufacturing requirement as to binding refers only to the original,

and that copyright books rebound abroad cannot be denied importation.

Also it has been held that a foreign translation of a copyright work,

for which translation American copyright is not claimed, cannot be

refused importation.

The provisions supplementing the manufacturing clause by prohibiting

importation are given in the chapter on importation.

{Sidenote: Foreign manufacturing provisions}

Holland is the only country in Europe which requires that the deposit

copies shall be printed within the country and thus makes manufacture a

condition of copyright--an inheritance probably from the times when the

printer-publishers of the Protestant Netherlands were the only ones

printing the books barred in Catholic countries by the _index

expurgatorius_, and when deposit was naturally required from them. The

law covered the Dutch West Indies, and the precedent was followed in

Siam; and in the Transvaal and Orange State the Dutch law continued

after they had become English colonies. Otherwise than in these

countries, only the British dominions of Canada and Newfoundland and the

Commonwealth of Australia have manufacturing provisions. Canada made

such provision as to domestic copyright in 1886 and again in the act of

May 2, 1889, which last provides that a literary, scientific, musical or

artistic work shall, before or simultaneously with publication or

production elsewhere, be registered in the office of the Minister of

Agriculture, and be printed or published or produced in Canada within

one month after publication or production elsewhere. Newfoundland in its

statute of 1892, following our own of 1891, provided similarly that the

condition for obtaining copyright shall be that the literary, scientific

or artistic work shall be printed and published or produced in this

colony. Australia, under the new code of 1905, confines domestic

Australia, or plates made therefrom, or from plates or negatives made in

Australia in cases where type is not necessarily used," and in an

artistic work to those "made in Australia."

{Sidenote: English patent proviso}

Unfortunately, the precedent of our copyright act of 1891 has since been

followed in England in the patent and designs act of 1907, which

provides (sec. 27) that a patent may be revoked after four years "on the

ground that the patented article or process is manufactured or carried

on exclusively or mainly outside the United Kingdom." Such a provision

had been a feature of the patent laws of Germany, Canada and other

countries, but it is new in British law and has evoked strong protest

from American patentees, notwithstanding that it is parallel with our

manufacturing provision with respect to copyrights.

DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT

{Sidenote: Dramatists' and composers' rights}

The dramatic author and the musical composer receive recompense for

their creative labor not so much from publication of their works in the

printed form of a book as through their performance or representation,

when protected as playright or performing right, as the artist receives

remuneration not only for the reproduction and sale of copies, but also

from the exhibition as well as sale of his original work. Dramatic and

musical copyright, in the wide sense, therefore, covers copyright in the

specific sense and playright, as to which latter common law rights

especially need statutory protection.

{Sidenote: American provisions}

In the protection of dramatic and musical compositions the new American

code specifically provides not only for copyright, but for playright or

right of performance. Under subject-matter of copyright (sec. 5) such

works are classified as "(d) Dramatic or dramatico-musical compositions;

(e) Musical compositions"; and the Copyright Office Rules and

Regulations further define these classes as follows:

{Sidenote: Copyright Office definitions}

"8. _(d) Dramatic and dramatico-musical compositions_, such as dramas,

comedies, operas, operettas and similar works.

"The designation 'dramatic composition' does not include the following:

Dances, ballets, or other choregraphic works; tableaux and moving

picture shows; stage settings or mechanical devices by which dramatic

effects are produced, or 'stage business'; animal shows, sleight-of-hand

performances, acrobatic or circus tricks of any kind; descriptions of

moving pictures or of settings for the production of moving pictures.

(These, however, when printed and published, are registrable as

'books.')

"9. _Dramatico-musical compositions_ include principally operas,

operettas, and musical comedies, or similar productions which are to be

acted as well as sung.

"Ordinary songs, even when intended to be sung from the stage in a

dramatic manner, or separately published songs from operas and

operettas, should be registered as musical compositions, not

dramatico-musical compositions.

"10. _(e) Musical compositions_, including other vocal and all

instrumental compositions, with or without words.

"But when the text is printed alone it should be registered as a 'book,'

not as a 'musical composition.'"

{Sidenote: Rights assured}

To dramatic and musical authors are given (sec. 1) in addition to the

general right, granted in subsection "(a) To print, reprint, publish,

copy and vend the copyrighted work," the specific exclusive rights:

"(b) ... to dramatize it if it be a non-dramatic work; to convert it

into a novel or other non-dramatic work if it be a drama; to arrange or

adapt it if it be a musical work;...

{Sidenote: Dramatic rights}

"(d) To perform or represent the copyrighted work publicly if it be a

drama or, if it be a dramatic work and not reproduced in copies for

sale, to vend any manuscript or any record whatsoever thereof; to make

or to procure the making of any transcription or record thereof by or

from which, in whole or in part, it may in any manner or by any method

be exhibited, performed, represented, produced, or reproduced; and to

exhibit, perform, represent, produce, or reproduce it in any manner or

by any method whatsoever;

{Sidenote: Musical rights}

"(e) To perform the copyrighted work publicly for profit if it be a

musical composition and for the purpose of public performance for

profit; and for the purposes set forth in subsection (a) hereof, to make

any arrangement or setting of it or of the melody of it in any system of

notation or any form of record in which the thought of an author may be

recorded and from which it may be read or reproduced";--to which

provision of subsection (e), in respect to copyright control of

mechanical records, are added provisos that such control shall not

extend to compositions published and copyrighted before July 1, 1909,

and works of foreigners whose state does not grant similar right to

American citizens, and shall be subject to compulsory license

arrangements, requiring that if the author permits any mechanical

reproduction, he shall license any manufacturer under conditions stated

in detail in the act, all of which exceptions and conditions are fully

stated in the chapter on mechanical music provisions.

{Sidenote: Excepted performance}

An exception to these exclusive rights is, however, made in the proviso

(sec. 28) "_Provided, however_: That nothing in this Act shall be so

construed as to prevent the performance of religious or secular works,

such as oratorios, cantatas, masses, or octavo choruses by public

schools, church choirs, or vocal societies, rented, borrowed, or

obtained from some public library, public school, church choir, school

choir, or vocal society, provided the performance is given for

charitable or educational purposes and not for profit."

This proviso is singularly defective in phraseology, as the phrase

"octavo choruses" has no musical significance and uses a music-trade

term to designate choruses usually but not necessarily published in

octavo form; and the duplication of the words "public school," etc., is

probably a verbal error in the bill which mistakenly became part of the

law. The proviso is doubtless intended and would fairly be construed to

permit gratuitous unauthorized performance of religious or secular works

such as oratorios, cantatas, masses, and choruses by public schools,

church choirs, school choirs or vocal societies, from copies rented,

borrowed, or obtained from some public library, provided the performance

is given for charitable or educational purposes and not for profit.

Curiously the letter of the proviso would seem to provide that the

beneficiary organization cannot perform from a purchased copy, but only

from copies rented, borrowed or "obtained from" some public source; but

this also is an evident error.

{Sidenote: Performance "for profit"}

It should be noted that the omission from subsection (d) as to drama and

the inclusion in subsection (e) as to music, of the words "for

profit,"--doubtless with the intent of assuring to the individual

purchaser of music the right to perform it privately,--have significance

here, and serve, it would seem, to give the dramatic author absolute

control even over gratuitous performances and to limit the control of

the musical author to performances which are not gratuitous, a negative

provision covering, and giving much wider latitude than, the proviso

(sec. 28) above cited. But as dramatico-musical compositions are

classified (sec. 5, d) with dramatic compositions, and an oratorio and

possibly a cantata might be considered as a dramatico-musical

composition, the proviso (sec. 28) may have a specific effect as to this

kind of dramatico-musical compositions. The law is unfortunately

defective and confusing by reason of this proviso and will be so

difficult of judicial construction as to suggest the omission, by

amendment, of this proviso. The use of the word "public" in both cases

implies that the author cannot control private representation and opens

other questions difficult of judicial interpretation.

{Sidenote: Works not reproduced}

It is provided (sec. 11): "That copyright may also be had of the works

of an author of which copies are not reproduced for sale, by the

deposit, with claim of copyright, of one complete copy of such work if

it be ... a dramatic or musical composition"; provided that the required

deposit of two copies shall be made, as in the case of books, on

publication thereafter by the multiplication and public sale or

distribution of copies.

{Sidenote: Copyright notice}

The notice of copyright must be printed (sec. 18) on each copy, as in

the case of a book in the form "Copyright" or the abbreviation "Copr.,"

"accompanied by the name of the copyright proprietor" and "the year in

which the copyright was secured by publication." In the case of a

published dramatic work the notice must be placed, as in the case of a

book, upon the title-page or the page immediately following, but in the

case of a published musical work the law provides that the notice "shall

be applied ... either upon its title-page or the first page of music,"

and this specification makes the copyright notice of doubtful validity

if applied in a musical work on the page following the title-page,

unless this is the first page of music.

{Sidenote: Dramatico-musical works protected from mechanical

reproduction}

The classification of dramatico-musical compositions under subsection

(d) as dramatic works and not under subsection (e) as musical

compositions, defines an opera and possibly an oratorio or cantata as a

dramatic rather than a musical composition. As the dramatic author is

given (sec. 1, d) the comprehensive rights over reproduction "in any

manner or by any method whatsoever" while the musical author is limited

(sec. 1, e) in respect to mechanical reproductions, it would seem to

follow that the author of an opera may retain absolute control over

mechanical reproduction, as the author of a non-musical drama retains

absolute control over phonographic or other reproduction of his drama.

This would seem to confine the requirements that the author of a musical

composition permitting mechanical reproduction should license any

manufacturer, to musical compositions which are not dramatic, _i. e._,

to instrumental compositions or to songs and other vocal music not

associated with drama. As an overture to an opera is an integral part of

the dramatico-musical composition, it would even seem that an overture

which is part of an opera, or possibly an orchestral introduction or

interlude in an oratorio or cantata, would not be subject to the

mandatory license provided as to musical compositions. But this question

has not yet come before the courts.

{Sidenote: Dramatic and musical works excepted from manufacturing

provisions}

Dramatic and musical works are not mentioned in the manufacturing and

affidavit provisions (secs. 15, 16, 17) which are specifically confined

to "the printed book or periodical specified in section 5, subsections

(a) and (b)," while dramatic and musical compositions are classified in

subsections (d) and (e). It might be alleged that dramatic or musical

compositions in book form or produced as books from type or by

lithographic or photo-engraving process should be classified as books

and subjected to the manufacturing provisions; but this is distinctly

not the letter of the law. This exception was specifically upheld for

music in the case of Littleton _v._ Ditson in 1894, by Judge Colt in the

U. S. Circuit Court in Massachusetts, where the defense that there was

no copyright in certain songs because the music sheets were not from

type set or plates made within the United States, was overruled; and for

drama in Hervieu _v._ Ogilvie in 1909, where in the U. S. Circuit Court

in New York, Judge Martin cited with approval Judge Colt's decision.

This ruling was also embodied in Treasury decision No. 21012 of April

17, 1899, permitting the importation of musical compositions copyrighted

in the United States and printed abroad.

{Sidenote: British colonial practice}

The Australian law, on the contrary, specifically includes under the

definition of "book," a "dramatic work" and a "musical work," and thus

subjects both to the manufacturing clause. Printing and publishing are

required in Canada ("within one month after publication or production

elsewhere") and in Newfoundland to obtain copyright under the local

acts; and as drama is not mentioned but included generically as a book

or literary composition, and music is specifically included, both

dramatic and musical compositions must be manufactured within each

country to obtain local, as distinguished from British or Imperial,

protection.

{Sidenote: Entry under proper class}

{Sidenote: Applications and certificates}

The author of a dramatic, dramatico-musical, or musical composition

should therefore be careful to make application in the United States

under class (d) or (e) and not as a book under class (b). The fact that

the law classifies under subsection (d) dramatic or dramatico-musical

compositions and under subsection (e) musical compositions, has caused

the Copyright Office to prepare separate application forms and

certificates for (D1) a dramatic composition, (D3) a dramatico-musical

composition and (E1) a musical composition, "published"; as also for

(D2) a dramatic composition (or a dramatico-musical composition) and

(E2) a musical composition, "not reproduced for sale." It would seem

advisable therefore that the author of an opera, oratorio or the like,

to obtain the fullest protection under the law, should enter such work

in class (d) as a dramatico-musical composition rather than in class (e)

as a musical composition, and thus safeguard himself against the

mechanical music proviso applied exclusively to class (e).

{Sidenote: Right of dramatization}

In regard to dramatization, the new American code is specific (sec. 1,

b) in giving to the author of an original work the exclusive right "to

dramatize it if it be a non-dramatic work" or "to convert it into a

novel or other non-dramatic work if it be a drama." The relations of a

maker of a dramatic version of a literary work or of a literary version

of a dramatic work, would follow the same rule as in the case of a

translator. An author has the exclusive right to dramatize or permit the

dramatization of his work, and the dramatization may be copyrighted in

the name of the original author or of the dramatizer, but the dramatizer

cannot prevent another dramatization of the same work unless by transfer

of exclusive right from the original author.

{Sidenote: Dramatization term}

The specific copyright on a published dramatization dates from the

publication of the dramatization, which may extend the protection of the

dramatization beyond the copyright term of the original work. But on the

expiration of the copyright in the original work rival dramatizations

can no longer be prevented. All this holds true as to the novelization

of a drama.

{Sidenote: Musical arrangements}

In respect to music, the language of the law (sec. 1, e) is thoroughly

comprehensive in covering the arrangement or setting of a musical

composition or of a melody in any notation or in any form whatever. This

gives to the musical author entire control over the use of any part of

his work, as for instance the transcription from an orchestral work for

piano use, the instrumentation of a vocal work or the use for a song of

any melody in an orchestral work. On the other hand, variations,

transcriptions and so forth of a copyrighted work, made under

authorization from the copyright proprietor, may be separately

copyrighted as to that extent original works.

{Sidenote: Copyright Office definitions}

The Copyright Office Rules and Regulations say specifically: "(10)

'Adaptations' and 'arrangements' may be registered as 'new works' under

the provisions of section 6. Mere transpositions into different keys are

not expressly provided for in the copyright act; but if published with

will be made."

{Sidenote: Transposition}

In Hein _v._ Harris in 1910, the U. S. Circuit Court awarded damages

where the chorus of a song proved on transposition into the key of the

{Sidenote: Works in the public domain}

It is specifically provided (sec. 6) that "adaptations, arrangements,

dramatizations ... or other versions of works in the public domain, ...

shall be regarded as new works subject to copyright," and in the case of

such versions copyright inheres in the dramatizer, adaptor or maker of a

version, as in the case of a translator of a book, in the public domain.

Thus a dramatic or musical work in the public domain may be dramatized

or adapted freely and any individual dramatization or adaptation may be

copyrighted by the dramatizer or adaptor, but he cannot prevent other

dramatization or adaptation of the same work.

{Sidenote: Dramatization right protected by courts}

The American courts have fully upheld the control over dramatization

under the right "to dramatize" specifically given in the law of 1891 and

preserved under the new code. In 1895 in Harper _v._ Ranous, Judge

Lacombe, in the U. S. Circuit Court in New York, enjoined a play,

"Trilby," on the ground that the drama "presents characters, plot,

incidents, dramatic situations and dialogue appropriated from Du

Maurier's copyrighted novel," while denying protection against the mere

use of the title. In the same year and in respect to the same novel, in

Harper _v._ Ganthony, the Harpers, as owners of the copyright of

"Trilby," also obtained from Judge Lacombe an injunction against Miss

Ganthony, who had presented at the Eden Musee a series of monologues in

costume following the plot of the story, which the judge held to

constitute a dramatic version and therefore an infringement. A story,

"The transmogrification of Dan," purchased by the _Smart Set_ for $85,

copyrighted as part of that periodical and assigned back to the author,

was dramatized by Paul Armstrong and produced by the defendants under

the name of "The heir to the Hoorah," retaining the central incident of

the story, though with modification and extension of the characters,

situation and dialogue. In 1908 Judge Hazel, in Dam _v._ Kerke La Shelle

Co., in the U. S. Circuit Court in New York, awarded the full profits

from the dramatic representation as damages to the executor of Dam, the

author of the story; which decision was fully upheld in 1910 by the

Circuit Court of Appeals through Judge Noyes. Thus the new American code

specifically enacts into statute law previous decisions of the American

courts.

{Sidenote: English law and practice}

Under English law, on the contrary, the right of dramatization has not

been included under copyright; the mere copyrighting of a book could not

prevent its dramatization, but the copyrighting of a work in dramatized

form before its publication as a novel practically prevented other

dramatization of the literary work in so far as the one drama was a

reproduction of the features of the other. As stated by Colles and Hardy

in their recent work (1906) on "Playright and copyright in all

countries," "a novel is not a dramatic piece, ready and fit for

representation on the stage. Consequently, the author of a novel has the

law." The general principles were best stated in 1874 by Chief Justice

Cockburn in Toole _v._ Young, where Grattan's drama "Glory" was declared

not to be an infringement either of Hollingshead's novel "Not above his

business," on which it was confessedly founded, nor of the dramatic

version made under the title of "Shop" by Hollingshead himself, but

never printed or performed and therefore unpublished: "Two persons may

dramatize the same novel, for that is common property. It is true that a

writer cannot produce and represent a drama, which he has borrowed from

a drama written previously by another person; he would then be

representing the production of the first dramatist.... I wish to guard

myself against being supposed to lay down that, if a writer, while

dramatizing a novel, takes the incidents, characters, and dialogue of a

previous drama founded upon that novel, and reproduces what is in

substance identical with the previous drama, there might not be an

infringement of the right of the earlier dramatist if the later drama be

represented on the stage."

{Sidenote: The new British code}

The new British measure remedies this defect by specifically including

the sole rights to convert a novel or other non-dramatic work, or an

artistic work, into a dramatic work, by way of performance in public or

otherwise, and to convert a dramatic work into a novel or other

non-dramatic work.

{Sidenote: Infringement cases}

A curious early case was that of Reade _v._ Conquest in 1862, in which

the son of Charles Reade had made and sold to the defendant, who

produced it at his theatre, a dramatic version of "It is never too late

to mend" in ignorance of the fact that his father had first written a

play called "Gold" and had then transformed that into the novel; in this

the defendant was enjoined because the version which he produced

infringed the earlier play. In Beere _v._ Ellis in 1889, Baron Pollock

enjoined a rival dramatic version of "As in a looking glass" on the

ground that while bits of dialogue, presumably copied into the

defendant's version, were scarcely substantial, yet a special situation

founded on a new incident not in the novel and certain stage business

connected with the death of the heroine constituted an infringement. In

1890, in Schlesinger _v._ Turner, the executors of Wilkie Collins

obtained an injunction against a rival dramatic version of "The new

Magdalen," the judge holding that although the defendant's version had

not been copied from the author's own play, it was substantially similar

and therefore an infringement. That an independent and different

dramatic version can, however, be made, was specifically held in the

case of Schlesinger _v._ Bedford in the same year, when Collins's

executors failed to obtain an injunction against the defendant's rival

dramatic version of "The woman in white," although the novelist himself

had previously dramatized his work, the judge holding that the two plays

were "essentially different."

{Sidenote: Use of substantial quotations}

But the use in a play of considerable portions of a copyrighted novel

would be an infringement. That a dramatization using substantial parts

of a novel infringes the novel, was definitely established in 1863 in

Tinsley _v._ Lacy, where the proprietor of Miss Braddon's "Lady Audley's

secret" and "Aurora Floyd" obtained an injunction against a bookseller

who sold dramatizations under the same titles of which a quarter or more

of the text was taken bodily from the novels. So in 1888 an injunction

was obtained from Judge Stirling, in Warne _v._ Seebohm, in the Court of

Chancery, against a dramatization of "Little Lord Fauntleroy" which

copied from the novel beyond the limits of fair use and was therefore

considered a "copy" from the work.

{Sidenote: Specific scenes or situations}

Where in dramatizing a novel, the dramatic author invents and introduces

new scenes, situations or other features, the copying of such added

features into another dramatic version of the novel, otherwise

independent, constitutes an infringement of the original play. In the

case of Nethersole _v._ Bell in 1903, with respect to rival English

dramatic versions of Daudet's "Sapho," it was held that while there

might lawfully be independent dramatizations of the novel, the

circumstances indicated that the Espinasse version of the defendant,

said to have been written in Australia, had been so modified consequent

to representation of Clyde Fitch's version, as to constitute an

infringement of the plaintiff's rights. In Tree _v._ Bowkett in 1896,

plaintiff obtained an injunction against the use by the defendant in a

rival dramatic version of "Trilby" because of two scenes introduced by

the plaintiff into his drama which were not in the novel or in the

American dramatization. On the other hand, in Chatterton _v._ Cave in

1876, where the plaintiff had dramatized Eugene Sue's "The wandering

Jew" and added two scenes not in the novel, an injunction was denied by

Lord Chief Justice Coleridge against an independent dramatization,

though it had included similar scenes, on the ground that these were not

sufficiently substantial and material in the play to constitute an

infringement. And this application of the principle of _de minimis non

curat lex_ was affirmed by the House of Lords in 1878.

{Sidenote: What is a dramatic composition}

{Sidenote: Judge Blatchford's opinion}

As to what is a dramatic composition or representation, no definition is

given in the American law, and the English laws of 1833 and 1842, quoted

beyond, are not explicit. Both English and American courts have

therefore been obliged to make or to extend definitions, but the

decisions have been somewhat confusing. The most explicit general

statement is that made by Judge Blatchford in discussing Daly _v._

Palmer in 1868: "A composition, in the sense in which that word is used

in the act of 1856, is a written or literary work invented or set in

order. A dramatic composition is such a work in which the narrative is

not related, but is represented by dialogue and action. When a dramatic

composition is represented in dialogue and action by persons who

represent it as real by performing or going through with the various

parts or characters assigned to them severally, the composition is

acted, performed, or represented; and if the representation is in

public, it is a public representation. To act in the sense of the

statute is to represent as real by countenance, voice, or gesture that

which is not real. A character in a play who goes through with a series

of events on the stage without speaking, if such be his part in the

play, is none the less an actor in it than one who, in addition to

motions and gestures, uses his voice. A pantomime is a species of

theatrical entertainment, in which the whole action is represented by

gesticulation without the use of words. A written work consisting wholly

of directions, set in order for conveying the ideas of the author on a

stage or public place by means of characters who represent the narrative

wholly by action, is as much a dramatic composition designed or suited

for public representation as if language or dialogue were used in it to

convey some of the ideas."

{Sidenote: Judicial definitions}

In a recent case of Barnes _v._ Miner in 1903, where an injunction was

asked against a vaudeville change artist who had combined songs in

costume with a cinematograph representation of scenes in the dressing

room during the changes, Judge Ray, in the U. S. Circuit Court in New

York, declined to grant relief, adding that as a mere spectacular

composition such "sketch" was not properly a dramatic composition. The

English law was construed in 1848 in Russell _v_. Smith, when a song

"The ship on fire," in which dramatic action was exhibited by the singer

alone without costume or scenery, while seated at the piano, was

construed to be a "dramatic piece"--the action being "not related but

represented." In 1872, in Clark _v._ Bishop, a music hall song "Come to

Peckham Rye" was similarly protected as a "dramatic piece." But in 1895,

in Fuller _v._ Blackpool Winter Gardens Co., it was held that the song

"Daisy Bell," though sung in character costume, was not a "dramatic

piece" because its representation did not require acting or dramatic

effect. Later decision construed the act of 1833 to cover only spoken

words, the English Court of Appeal holding in Scholz _v_. Amasis in

1909, through Lord Chief Justice Farwell, that only substantial copying

of written dialogue, and not of a plot or situation, constitutes

infringement, and in Tate _v._ Fullbrook in 1908, that the writer of the

dialogue is the sole author of the musical sketch though devised and

staged by another. But in two cases, one by Moore in 1903 and one by

Fraser in 1905, against George Edwardes, English juries gave heavy

damages where the scenarios for musical comedies submitted to that

theatrical manager had been made the basis for musical comedies by other

writers afterward produced at Daly's Theatre, London.

{Sidenote: Moving pictures may be infringements}

The opinion of Judge Blatchford was quoted and followed by the U. S.

Circuit Court of Appeals in New York, in 1909, in Harper _v._ Kalem Co.,

which said through Judge Ward: "The artist's idea of describing by

action the story the author has written in words is a dramatization. It

is not necessary that there should be both speech and action in dramatic

performances although dialogue and action usually characterize them." In

this case the defendants had caused persons to represent the action in

certain scenes of "Ben Hur" and photographed this representation on a

moving picture film, which they reproduced for sale to theatoriums,

where public exhibitions were given for profit. The court held under the

old law that "moving pictures would be a form of expression infringing

the author's exclusive right to dramatize his writings and publicly to

perform such dramatization." The contrary view was held in the English

case of Karno _v._ Pathe Freres in 1908, where also the Court of

Appeal held, in 1909, that not the manufacturer but the exhibitor of

such a film would be the responsible party if there were infringement.

{Sidenote: Literary merit not requisite}

The doctrine that copyright does not depend on literary merit, was

strengthened in a dramatic case in Henderson _v._ Tompkins in 1894, in

the U. S. Circuit Court in Massachusetts by Judge Putnam, who held that

a paraphrase of "I wonder if dreams come true," from "Ali Baba,"

constituted an infringement, though the offending piece had slight

literary merit.

{Sidenote: What is a dramatico-musical composition}

As to what is a musical composition, the term defines itself. But the

phrase "dramatico-musical compositions," as used in the American code,

bristles with perplexities, not altogether solved by the definitions of

the Copyright Office Rules, above cited. It means, of course, music and

drama in association, but in this combination the definition of the

dramatic side is peculiarly difficult. Whether a dance, ballet or other

choregraphic work, with or without music, is included, is a mooted

question. In 1892, in Fuller _v._ Bemis, where the plaintiff sought to

protect a skirt dance of which she had filed a description for copyright

as a dramatic composition, Judge Lacombe, in the U. S. Circuit Court in

New York, held that: "It is essential for a dramatic composition to tell

some story. The plot may be simple, it may be but the representation of

a single transaction; but it must repeat or mimic some action, speech,

emotion, passion, or character, real or imaginary. A series of graceful

movements, combined with an attractive arrangement of drapery, lights,

and shadows, telling no story, portraying no character, depicting no

emotion, is not a dramatic composition." This view is adopted in the

not consonant with English and international views.

{Sidenote: The new British code}

The new British measure is definitely comprehensive and specific in

including as a dramatic work "any piece for recitation, choregraphic

work or entertainment in dumb show the scenic arrangement or acting form

of which is fixed in writing or otherwise, and any cinematograph

production where the arrangement or acting form or the combination of

incidents represented give the work an original character."

{Sidenote: Protection of playright}

It is evident that the methods for securing copyright for published

dramatic and musical works are in general the same, with exceptions

noted in this chapter, as for literary works, that is, publication with

publication of two copies of the best edition then published, with a fee

of one dollar. Copyright in the specific sense is, however, of less

importance to the dramatic or musical author, as has already been

pointed out, than playright or performing right, which is also covered

and protected specifically by the code of 1909, though in less accurate,

definite and satisfactory provisions, involving in some respects serious

questions. The right at common law or in equity to prevent the copying,

publication or use of an unpublished work and to obtain damages

therefor, is specifically confirmed (sec. 2), and this applies

especially to unregistered manuscripts.

{Sidenote: Protection of unpublished work}

The method of registration of an unpublished work to secure playright or

performing right, as previously stated, is absolutely simple, consisting

solely in the registration of a claim and the deposit of one copy of the

work in manuscript or other unpublished form, with a fee of one dollar.

The law is clear and satisfactory as to the punishment, after such

registration, of infringement of playright or performing right, but it

is not clear as to the date from which such protection starts, and

whether protection is for an indeterminate period up to publication

(practically in perpetuity if no publication be made), or for the

statutory term. This is because the relations of publication and first

performance are inferences only and specifically defined in the law. The

without reference to initial date, which would be presumably the date of

the certificate. The Copyright Office will doubtless, under this

precedent, issue renewal certificate for the second term of twenty-eight

years. The trend, and in several instances the letter of the law, shows

publication to mean the multiplication or reproduction of printed or

other copies and their public offering, sale and distribution, and

indicate that performance, whether privately or publicly and for profit,

is not publication. The new Copyright Office Rules specifically hold

that: "Representation on the stage of a play is not a publication of it,

nor is the public performance of a musical composition publication."

Judicial decisions on this point both in England and this country are

confusing if not contradictory. In the absence of specific provision in

the law for renewal of term in unpublished works, the view that the

grant of the statute is for protection under the common law rather than

a statutory and limited grant of privilege, is defensible and may be

upheld by the courts, should a case arise. No case is likely to arise

for twenty-eight years from the time of first copyright, under the act,

of an unpublished work; but the dilemma will then present itself to the

author whether he should apply for a renewal term and thus accept the

limitations of the statute, or rely upon the original registration as a

protection in perpetuity up to the time of publication. Possibly before

that time this difficult point may be made clear by supplementary

legislation.

{Sidenote: Indeterminate protection}

The most serious argument against the view that unpublished works may be

protected indeterminately, is founded on the provision of the

Constitution authorizing Congress to grant protection for limited terms,

as to which the view may be upheld that Congress is not here making a

grant, but is offering statutory protection to the inherent right of an

author in an unpublished work.

In any event the author has clear rights for twenty-eight years from the

date of publication or the date of first performance, whichever the

earlier. In case of publication, it is altogether probable that the

playright or performing right will be construed by the courts to lapse

at the end of the copyright term and renewal thereof of the published

work, and in case a "book of the play" or libretto of an opera is

printed for sale within a theatre in connection with the performance,

that will undoubtedly constitute publication and such copies should be

copyrighted.

{Sidenote: Printing and performance}

The doctrine that performance is not publication was upheld by the N. Y.

Court of Appeals in Palmer _v._ DeWitt in 1872, in which the assignee of

the manuscript and playright of Robertson's drama "Play" was granted an

injunction against the printing of the drama, although it had been

publicly performed, but not printed, in London. The same doctrine was

applied in the Illinois Supreme Court in 1909 in Frohman _v._ Ferris.

But publication abroad, by the printing of a drama unless protected

under the international copyright provisions, has been held to forfeit

the common law playright transferred with an unpublished manuscript, by

the decision in Daly _v_. Walrath in 1899, by Judge Bartlett in the N.

Y. Supreme Court, when an injunction was refused against the performance

of Sudermann's "Die Ehre," translated as "Honor," because the author had

printed the play in Germany despite a contract with the American

assignee to refrain from publication. In the case of Wagner _v._ Conried

in 1903, in the U. S. Circuit Court in New York, Judge Lacombe declined

to enjoin a production of "Parsifal," holding that the publication of a

printed edition by Schotts in Germany had forfeited playright, since the

reservation by Wagner in his contract with Schotts of the acting rights

was not applicable in this country. The printing of a dramatic

manuscript solely for the use of the players is not publication, as was

held in French _v_. Kreling, in 1894, by Judge Hawley in the U. S.

Circuit Court in California, where Farnie's opera "Falka," of which the

musical score had been published, but the libretto printed only for the

singers, was protected as an unpublished manuscript.

{Sidenote: English confusion}

{Sidenote: Specific English provisions}

The English law as to dramatic and musical copyright and playright and

performing right, has been most confusing if not contradictory, and

authorities differ, as do MacGillivray and Scrutton, in its

interpretation. Whether public performance constitutes publication or

whether they are separable and separate events has been diversely

treated in the laws, by the judges and in legal text-books. The dramatic

clear up earlier uncertainty, provided that the author of "any tragedy,

comedy, play, opera, farce, or any other dramatic piece or

entertainment, composed, and not printed and published," shall have "the

sole liberty of representing in any part of the British Dominions"; "and

the author of any such production, printed and published," shall, "until

the end of twenty-eight years from ... such first publication" or for

life, have "the sole liberty of representing ... as aforesaid." The

general copyright act of 1842 specifically applied this previous act

also to "musical compositions" and enacted "that the sole liberty of

representing or performing ... any dramatic piece or musical

composition" shall "endure ... for the term in this act provided for ...

years; and the provisions of the act as to copyright and registration

were extended to representing or performing, "save and except that the

first public representation or performance of any dramatic piece or

musical composition shall be deemed equivalent in the construction of

this act to the first publication of any book." The "copyright (musical

compositions) act" of 1882 added the requirement, that in the case of a

musical composition, to retain the performing right, notice of

reservation should be printed on the title-page of every published copy,

and the act further provided that the proprietor of the performing

right, if the owner of the copyright be another person, may require him

to print such notice of reservation, for neglect of which he shall

forfeit twenty pounds.

{Sidenote: Probable effect}

Thus common law rights, it would seem, in an unpublished and unperformed

dramatic or musical work were given, pending publication, statutory

protection, apparently in perpetuity, from the date of composition.

Publication of a dramatic or musical composition in printed form ensured

years; and performing right was protected for forty-two years from "the

first public representation or performance of any dramatic piece or

musical composition" or life and seven years, whichever the longer.

{Sidenote: Publication prior to performance}

It had been the view of many English authorities that publication in

printed form as a book before the first public performance forfeited

performing rights, which opinion was shared by the Royal Copyright

Commission as voiced in the report of 1878 in the digest of Sir James

Stephen, who said: "The exclusive right of representing or performing a

dramatic piece or musical composition cannot be gained if such dramatic

piece or musical composition has been printed and published as a book

before the first representation thereof." But in the later case of

Chappell _v._ Boosey in 1882, in respect to John Oxenford's play of "The

bellringer," which had been printed and published previous to

performance, it was held in the Court of Chancery that publication as a

book before performance does not take away performing rights. On musical

compositions, however, the performing right is forfeited on publication

in print unless notice of reservation is printed on the published

copies. There remain the difficult questions whether when publication

precedes performance the statutory protection of the performing right

extends beyond the forty-two years from publication and whether

practice of English dramatists to give a so-called "copyright

performance" at a minor theatre, in which actors walk and talk through

the drama and the public is invited to pay a shilling at the box

office--and sometimes given half a crown apiece for the purpose; which

performance, though probably not necessary to fulfill any legal

requirement, permits registration of first performance at Stationers'

Hall and gives useful public notice to possible infringers.

{Sidenote: The new British code}

This uncertain and confused situation will be remedied under the new

British measure by the inclusion under "copyright" of the right "to

perform ... to deliver, in public" and the making of the copyright term

the "life of the author and fifty years after his death," which together

afford the simplest and most complete protection of playright as

incident to copyright.

{Sidenote: British international protection}

The international copyright act of 1844 contained the provision "that

neither the author of any book, nor the author or composer of any

dramatic piece or musical composition ... which shall ... be first

published out of her Majesty's dominions, shall have any copyright

therein respectively, or any exclusive right to the public

representation or performance thereof, otherwise than such, if any, as

he may become entitled to under this act,"--a provision inserted

probably for advantage in negotiating reciprocal conventions with other

countries. This provision was applied in 1863, in the case of Boucicault

_v._ Delafield, to a British author whose play had been first printed

and published as well as performed in America. In Boucicault _v._

Chatterton in 1876, the Chancery Division held that the prior

performance of "The Shaughraun" in New York was publication and deprived

the author of playright in England,--which again seems incompatible with

the doctrine upheld in the later case of Chappell _v._ Boosey, above

cited. Great Britain is the only country in the International Copyright

Union which has declined to accept the declarative interpretation made

in Paris in 1896 of the Berne convention of 1886, declaring that

performance does not constitute publication. Thus if a dramatic or

musical work is first publicly performed outside the British dominions,

the performing right is extinguished therein, unless protected under the

international copyright acts, though first publication outside the

British dominions of a work first publicly performed within them, may

not extinguish the performing right.

{Sidenote: Statutory ambiguity}

The confusion of judicial interpretations, as to the relations between

performance and publication, in international as well as domestic

act of 1842, in which the clause making first performance "equivalent in

the construction of this act to the first publication of any book" may

be taken either in a comprehensive sense or merely as defining the

starting-point for performing right as well as for copyright in the

specific sense.

{Sidenote: What is public performance}

The question of what is public performance is of some importance,

especially in Great Britain, where playright is not infringed except by

representation in a place of dramatic entertainment and where it has

been held that any place in which a dramatic piece is publicly performed

is for the time a place of dramatic entertainment. A public performance

is probably one to which the public in general is admitted either by

sale of tickets or by invitation; and this would probably include a

performance given before a society to membership in which the public

might be admitted, although a performance limited to a certain class of

the public might not be construed as a public representation. Where "Our

boys" was performed at Guy's Hospital, London, by an amateur company,

for nurses and others connected with the hospital specially invited, it

was held in 1884, in Duck _v._ Bates, that though a performance may be

public where the public are present, although no money is taken, yet the

production in question was not a public representation. In this leading

case, important as a precedent for America as well as in England, the

decision was made by Justices Brett, M. R., and Bowen, L. J., Justice

Fry dissenting, and the Master of the Rolls, in an elaborate opinion,

discussed the relations of private and public performance, as a question

of fact: "In order to entitle the author to penalties there must be a

representation which will injure the author's right to money; such, for

instance, as a representation which, although it is not for profit,

would attract persons who are willing to pay money, and would induce

them not to go and see a performance licensed by the author.... The

representation must be other than domestic or private. There must be

present a sufficient part of the public who would go also to a

performance licensed by the author as a commercial transaction.... I

wish to say, by way of warning, that those who go beyond the facts of

the present case may incur the penalties of the statute."

{Sidenote: Manuscript rights}

Common law rights in an unpublished manuscript of an unperformed work,

cover both copyright and playright. In 1894, in Gilbert _v._ Star, while

the comic opera "His Excellency" was in manuscript and under rehearsal,

Justice Chitty in the Court of Chancery granted an injunction against a

newspaper report of the plot and incidents on the common law ground that

its communication to the newspaper involved a breach of contract, thus

confirming the right of an author to full control of his manuscript work

for copyright as well as playright, upheld in Prince Albert _v._ Strange

in 1849. But a dramatic author cannot enjoin a drama, however similar,

completed before the publication or performance of his own work, as was

decided in the case of Reichardt _v._ Sapte, in 1893, where the author

of "The picture dealer" was denied relief against the closely parallel

play "A lucky dog," which was proved to have been completed in 1890,

though not performed until after the writing and presentation of the

author's play in 1892.

{Sidenote: American cases}

The right of control of an unpublished dramatic manuscript under common

law was strengthened in Herne _v._ Liebler, in 1902, by the decision of

Judge Ingraham in the N. Y. Supreme Court, which upheld the right of the

plaintiff to prevent sub-license of a play beyond the terms of the

contract by a licensee, who had agreed to keep the manuscript

unpublished and use it only under specific limitations. In the case of

Maxwell _v._ Goodwin, in 1899, where the plaintiff's play of "Congress"

had been rejected by the defendant, who afterward produced a play

"Ambition," also founded on scenes in Washington, Judge Seaman in the U.

S. Circuit Court in Illinois overruled the defendant's contentions that

there was no playright under common law in an unpublished manuscript and

that there was no inherent property right in ideas or creations of the

imagination apart from the manuscript in which they are contained or the

language in which they are clothed; though an injunction was denied on

proof that the defendant had not read the plaintiff's manuscript and

that the actual author of "Ambition" had no knowledge of the plaintiff's

play.

{Sidenote: Unpublished orchestral score}

In 1883, in Thomas _v._ Lennon, where Gounod's "Redemption," of which

the orchestral score was unpublished, had been rewritten for orchestra

from a published non-copyright piano arrangement, Judge Lowell, in the

U. S. Circuit Court in Massachusetts, ruled against this as an

infringement of the unpublished work on common law grounds--but this

decision has not been considered good law.

{Sidenote: Dramatic work by employee}

encyclopaedic and like works, by the employment for hire of a dramatic

author, as was fully established in the case of Mallory _v._ Mackaye in

1898, by Judge Wheeler in the U. S. Circuit Court in New York, where

Mackaye had contracted for a salary of $5000, that all inventions and

plays by him within the ten years of the contract should belong to

Mallory, and was restricted accordingly from the independent production

of "Hazel Kirke."

{Sidenote: Copyright term}

The duration of copyright in dramatic and musical compositions is the

same as for books, in the United States (twenty-eight years with renewal

for twenty-eight years more), in Great Britain (under the new code life

and fifty years), in Australia (forty-two years or life and seven years,

as hitherto in Great Britain), and in Canada and Newfoundland

(twenty-eight years with renewal for fourteen years more),--as also in

most other countries, the new term for those in the International

and fifty years. But in the case of a "dramatico-musical" work, where

the libretto and the music are by different authors, the respective

terms may end at different dates, as was held in 1905, and upheld in

1909, by the German courts as to the opera "Carmen" under the

Franco-German convention limiting copyright to thirty years after death.

Bizet, author of the music, had died in 1875, but one of the three

librettists was still living, on which facts the court held that the

musical score, but not the libretto, was free from copyright. Under the

new British and Canadian measures, which include the unusual provision

that the copyright term in a work of joint authorship shall be

determined by the first instead of the last death, the result would be

to the contrary effect.

{Sidenote: Registration}

Registration in the United States, as also in Canada and Newfoundland,

through the deposit of copies, is entirely the same for a dramatic or

musical composition as for a book. Registration in England of a dramatic

or musical composition under the act of 1842 (sec. 20) was to be made at

Stationers' Hall, as in the case of a book, by recording in statutory

form the title, the time and place of first publication, or for

performing right, of first public performance, and the name and abode of

author and of proprietor. But the same law (sec. 24) provided that

protection of performing right in a dramatic piece should not be

dependent upon entry in the registry and, by including in the definition

of a dramatic piece (sec. 2) a "musical entertainment," evidently

included musical compositions in this exemption, and thus made

registration optional. This view was upheld in 1848 in Russell _v._

Smith, when the song "The ship on fire" was protected as a "dramatic

piece," though it had not been registered. The new British measure omits

all requirements for registration of any works. Registration of any

prerequisite for legal action.

{Sidenote: Assignment}

Assignment or grant of a dramatic or musical composition, as of a book,

may be made (sec. 42) by an instrument in writing, acknowledged, if in a

foreign country, (sec. 43) before a consular or diplomatic officer, and

must be recorded (sec. 44) in the Copyright Office within three months,

or if made in a foreign country, six months, in default of which it is

void as against any subsequent purchaser. Assignment in Great Britain

must be in writing, and previous to the new code with entry at

Stationers' Hall, in the case of performing right as well as of

Commons has no specific provision on this point. But it is most

desirable that in any transfer of copyright or playright the exact

nature of the right transferred should be defined in the writing. A

partial assignment, or license, of performing right as well as of

grant a specific license, and to enforce its limitations, was upheld in

1892 in Duck _v._ Mayen, in an English court by Justice Day, who held

that where the defendant had obtained license at the price of one guinea

to play "Our boys" for charity at a music hall, but performed it

elsewhere, though for the same charity, the usual royalty of five

guineas must be paid. Assignment in Canada and Newfoundland must be in

writing in duplicate copies, of which one must be deposited in the

office of copyright.

{Sidenote: Parody}

The general principles as to infringement and fair use, treated fully in

another chapter, apply to dramatic and musical compositions, as already

illustrated above, but some special applications may here be noted. That

a parody or burlesque may not be an infringement, though including some

quotations from the work parodied, was decided in 1903, in Bloom _v._

Nixon,--where Fay Templeton had given a parody or imitation of another

actress's singing of "Sammy" in the "Wizard of Oz,"--in the U. S.

Circuit Court in Pennsylvania by Judge McPherson, who held that as this

was essentially an imitation of personality, it was not an infringement

of copyright: "Surely a parody would not infringe the copyright of the

work parodied merely because a few lines of the original might be

textually reproduced." The judge added: "No doubt the good faith of such

mimicry is an essential element; a mere attempt to evade the owners'

way what could not be done directly."

{Sidenote: Infringement by single situation}

There may be infringement of dramatic copyright in the use of a single

scene or situation, as already set forth with respect to novels,

provided this is of dramatic character. In 1892, in Daly _v._ Webster,

the U. S. Circuit Court of Appeals, through Judge Lacombe, held that the

railroad rescue scene in Brady's "After dark" infringed the copyright of

Daly's "Under the gaslight," which contained the similar situation of

the rescue of a person on a railroad track before an approaching train.

Though there was little dialogue in this scene, the court held that

while mechanical appliances are not entitled to copyright, a series of

events dramatically represented are copyrightable. In the subsequent

suit for damages, Daly _v._ Brady, the U. S. Supreme Court in 1899,

through Justice Peckham, upheld this decision, and held also that such a

situation constituted an integral part of the copyrighted drama and

should therefore be protected against infringement. That there may be

infringement of a dramatic composition without the use of scenery or

costumes was incidentally decided in Russell _v._ Smith, where the song

"The ship on fire," sung dramatically without these accessories, was

protected as a dramatic piece.

{Sidenote: Protection of title}

While the title of a dramatic or musical composition, like that of a

book, cannot be copyrighted as such, the courts seem disposed to

emphasize the title as an integral part of a play, perhaps more than in

the case of a book because the advertising of another play of like name,

especially in the case of one of long run and wide popularity, may

mislead the public and involve unfair competition. This protection was

upheld as a matter of common law in Aronson _v._ Fleckenstein in 1886,

by Judge Blodgett in the U. S. Circuit Court in Illinois, when the use

of the title "Erminie" was held to be unlawful, though the operetta

originally designated by the title had not been copyrighted. But in

Glaser _v._ St. Elmo Co. in 1909, the U. S. Circuit Court denied relief

where the title of Miss Evans's novel, then out of copyright, was used

for a second and unauthorized dramatization. There may be danger to

title differing from that under which it is copyrighted; but the change

of a descriptive sub-title has been held to be immaterial. In the case

of Daly's play "Under the gaslight," which in the copyright entry bore

the sub-title "A romantic panorama of the streets and homes of New

York," but in printed form the changed sub-title "A totally original

picturesque drama of life and love in these times," the defendants in

Daly _v._ Webster alleged that this change made the copyright invalid,

which contention was negatived by the U. S. Circuit Court of Appeals,

which held in 1892 that the sub-title was merely descriptive and not an

essential part of the title--a principle later applied by Judge Lacombe

in Patterson _v._ Ogilvie, in 1902.

{Sidenote: Names of characters}

In the case of Frohman _v._ Weber in 1903, in the N. Y. Supreme Court,

where the proprietor of the play entitled "Sherlock Holmes" sought to

enjoin another play "The sign of the four," in which the name Sherlock

Holmes designated the leading character, Judge Clarke held that this did

not constitute unfair competition and denied a preliminary injunction.

{Sidenote: Persons liable for infringement}

{Sidenote: Principal in control}

The question of the person liable for the infringement, especially of

playright, is one of some difficulty. In general, while any one

participating in a piratical performance, as an actor, is technically

guilty of infringement, it is usually the person or persons responsible

for and profiting by the performance who should be sued. The question of

responsibility is one of fact, and the early English decisions seem

confused and even contradictory. The person who has the initiative and

control of a performance, particularly if he is directly the employer of

the performers and has authority to discharge them, may be, _par

excellence_, the infringer even if he does not know that the performance

is piratical. In 1886, in Monaghan _v._ Taylor, the defendant was held

liable for infringement because a singer employed in his music hall sang

a copyright song, though the defendant did not choose or pass upon the

number. Thereafter in the "copyright (musical composition) act" of 1888,

it was provided that "the proprietor, tenant or occupier of any place of

dramatic entertainment" shall not be liable, "unless he shall willfully

cause or permit" a performance, "knowing it to be unauthorized." The

courts seem disposed to acquit a mere agent of responsibility. In 1893,

in French _v._ Day, Gregory, _et al._, it was held by Justice Kennedy as

to a performance of "The miner's wife" asserted to be an infringement of

"Lost in London," that the proprietor of the theatre, Day, "who merely

used Gregory," the manager, "as his mouthpiece," was the responsible

defendant. The new British code holds liable any person who for profit

permits a place of entertainment to be used for an infringing

performance unless he were not aware and had no reasonable grounds for

suspecting it to be an infringement.

{Sidenote: Protection against "fly by night" companies}

{Sidenote: State legislation}

In the prevention or punishment of unauthorized performances by

irresponsible private companies, the chief obstacle in the United States

was the difficulty of reaching the "fly by night" companies, as they

were called, as they flitted from state to state, and from one court

jurisdiction to another. To remedy this difficulty, an important

protection of the performing right in dramatic works was assured by the

act of January 6, 1897, obtained largely through the efforts of Bronson

Howard, as president of the American Dramatists Club. This act provided

penalty of $100 for the first and $50 for each subsequent unlawful

performance, and imprisonment for not exceeding one year, when such

unlawful performance was willful and for profit; and also that an

injunction issued in any one circuit might be enforced by any other

circuit in the United States. This was in consonance with successful

efforts to obtain the passage of state laws to protect dramatic and

musical works, aside from the federal copyright law, obtained by the

Dramatists Club between 1895 and 1905 in the states of New Hampshire,

New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey,

Massachusetts, Minnesota, California, Wisconsin, Connecticut, and

Michigan. These varied in form in the several states, though of the same

general purport. The New York statute, for instance, adds to the penal

code a new section as follows: "Sec. 729. Any person who causes to be

publicly performed or represented for profit any unpublished,

undedicated or copyrighted dramatic composition, or musical composition

known as an opera, without the consent of its owner or proprietor, or

who, knowing that such dramatic or musical composition is unpublished,

undedicated or copyrighted and without the consent of its owner, or

proprietor, permits, aids or takes part in such a performance or

representation shall be guilty of a misdemeanor." The texts in all the

states are given in full in Copyright Office Bulletin No. 3, 1906,

"Copyright enactments of the United States," pages 105-115.

{Sidenote: Remedies under present law}

The American code of 1909 enacts (sec. 28) that "any person who

willfully and for profit shall infringe any copyright ... or who shall

knowingly and willfully aid or abet such infringement, shall be deemed

guilty of a misdemeanor," punishable by "imprisonment for not exceeding

one year or by a fine of not less than one hundred dollars nor more than

one thousand dollars, or both, in the discretion of the court"; and

provides (sec. 25, fourth) damages "in the case of dramatic or

dramatico-musical or a choral or orchestral composition, one hundred

dollars for the first and fifty dollars for every subsequent infringing

performance; in the case of other musical compositions, ten dollars for

every infringing performance"; and also provides (sec. 36) for

injunction operative throughout the United States.

{Sidenote: Musical protection in England}

{Sidenote: Acts of 1902-1906}

In England the protection of musical properties under the acts of

1833-42 and 1882-88, had become so difficult that English music

publishers threatened to cease printing new original works because of

the freedom with which they could be pirated. Under the provisions of

1833, as reenacted in 1842, every infringing performance of a musical

composition, as of a dramatic piece, involved liability to "an amount

not less than forty shillings or the full amount of the benefit or

advantage arising from such representation, or the injury or loss

sustained by the plaintiff therefrom, whichever may be the greater

damage," in addition to costs. The "copyright (musical compositions)

act" of 1882 (45 & 46 Victoria, c. 40) had required that the right of

public performance should be reserved by printed notice on each

published copy and provided for a penalty of twenty pounds where the

proprietor of the publishing copyright neglected, after requirement

from the owner of the performing right, to print such notice. The

"copyright (musical compositions) act" of 1888 (51 & 52 Victoria, c. 17)

provided that the penalty or damages for every unauthorized performance

of any musical composition shall, in the discretion of the court, be

"reasonable" and may be less than forty shillings for each such

performance, or nominal, and that the proprietor, tenant or occupier

should not be liable unless "willfully" causing or permitting such

unauthorized performance, "knowing it to be unauthorized,"--but the act

specifically excepted "any opera or stage play" from its provisions. The

protest of the musical composers and publishers led to the passage of

the "musical (summary proceedings copyright) act" of 1902, which

authorized a constable to seize without warrant pirated copies hawked or

otherwise offered for sale, on the written request and at the risk of

the copyright owner or by direction of the court, and provided for their

forfeiture and destruction or delivery to the owner on the decision of

the court. A Musical Copyright Committee, for the consideration of these

vexed questions, was appointed by the Home Office and made a report in

1904; and a further "musical copyright act" of 1906 continued the

provisions stated and provided also for the seizure of plates as well as

copies of pirated musical compositions and for the summary punishment of

the offender by fine not exceeding five pounds and, for a repeated

offense, by fine not exceeding ten pounds or imprisonment not exceeding

two months, possession being proof of fraudulent intent unless the

copies bore the name of a printer or publisher. Both these acts were

applicable only within the United Kingdom. These provisions, in addition

to those for injunction and adequate costs, have bettered the condition

of musical properties in England, and they remain unrepealed, except as

to requirement of registration, under the new British code as adopted by

the House of Commons.

{Sidenote: Playright in other countries}

In most countries playright in the case of dramatic or musical works is

specifically covered in the copyright statutes or protected in

connection with copyright, although in Austria, Russia, Denmark and

Norway, in the case of music, special notice of reservation is required,

while in Australia special reservation of the performing right must be

made on publication in print of drama or music.

{Sidenote: International provisions}

In general, performance is differentiated from publication, and while in

some countries, as above indicated, publication in printed form,

especially of a musical work, may waive the exclusive right of

performance, performance is generally held not to constitute

publication. This view is expressly set forth in the interpretation made

at Paris, 1896, of the Berne convention of 1886, whereby section 2 of

the interpretative declaration defines "published works" as "works

actually issued to the public." "Consequently, the representation of a

dramatic or dramatico-musical work, the performance of a musical work

... do not constitute publication." The Berlin convention of 1908

repeats the same language in article 4, prefacing it with the definition

that "by published works ('_oeuvres publiees_') must be understood,

according to the present convention, works which have been issued

('_oeuvres editees_')"--the English text here given being the official

translation of the U. S. Copyright Office.

{Sidenote: Foreign protection of arrangements}

In most foreign countries which include musical compositions under

subjects of copyright either as covered under "literary and artistic

works" or by specific mention, the general principles as to arrangements

and adaptations hold in such countries. Several countries, as Belgium,

specify however "the exclusive right of making arrangements on motives

of the original composition," Brazil, Luxemburg, Mexico, Nicaragua and

Tunis following this precedent in nearly identical language. Germany

specifically protects the "sole right of making extracts from musical

works and arranging for orchestra or in parts." Spain specifies among

its prohibitions "the total or partial publication of melodies, with or

without accompaniment, transposed or arranged for other instruments or

with different words." Hungary specifies that "every arrangement of a

musical work, published without the consent of the author, which cannot

be considered as a composition in itself," is an infringement. Where,

however, the author of a work permits or licenses an adaptation or

arrangement, or an original adaptation or arrangement is made from a

work in the public domain, that is properly a separate subject of

that "variations, etc., on a theme or air which is public property,

constitutes property. Transpositions are similar to translations of

literary subjects."

{Sidenote: International definitions}

Dramatic and musical works were specifically included under the

protection of the International Copyright Convention of Berne, 1886, by

the definition in article IV of "literary and artistic works" as

including "dramatic or dramatico-musical works; musical compositions

with or without words." In the Berlin convention, 1908, the same general

term was defined in article 2 as including "dramatic or

dramatico-musical works; choregraphic works and pantomimes, the stage

directions ('_mise en scene_') of which are fixed in writing or

otherwise; musical compositions with or without words." "Adaptations,

arrangements of music, etc., are specially included," in the phraseology

of article X of the convention of 1886, "amongst the illicit

reproductions to which the present convention applies, when they are

only the reproduction of a particular work, in the same form, or in

another form, with non-essential alterations, or abridgments, so made as

not to confer the character of a new original work"; and practically the

same language is repeated in article 12 of the convention of 1908. On

the other hand, "adaptations, arrangements of music," etc., are

protected as original works without prejudice to the rights of the

author of the original work, in article 2 of the convention of 1908.

The German law of 1901 permits, however, extract from or other use of

musical compositions in adaptations or arrangement under specified

circumstances, as for family, social or other gratuitous performance,

under the limitations of the law, which exception seems to be permitted

also under the law of 1910.

{Sidenote: National formalities}

Throughout the countries of the International Copyright Union, first

publication in any of these countries and compliance with its

formalities entitle the author to playright as well as copyright in all

the other countries within the Union, with some exceptions to be noted.

Thus in Switzerland the conditions of performance must be given at the

head of the printed play; and the law stipulates that the author may not

require as royalty more than two per cent of the gross profits, and a

performance at which the admission fee is reckoned to cover only cost of

production or a performance for charitable purposes, is not considered

an infringement of playright. In Italy a play performed, but not printed

and published, must be submitted in manuscript for inspection within

three months of first performance, together with a declaration reserving

the playright; a printed book or play should be deposited with

accompanying notice of reservation within three months, or the

proprietor cannot obtain damages until such deposit, and failure to

deposit within ten years abandons copyright protection. Italian

proprietors of music sometimes refrain from printing and publishing

music, with the intent of maintaining copyright and playright

indefinitely.

{Sidenote: Specific reservations or conditions}

In Luxemburg and Sweden, reservation of playright must be stated on

printed copies, as is also the case as to music in these countries and

in the other countries elsewhere cited. In Sweden, the term for

playright is less than for copyright in the printed work, being for life

and thirty years only. In Sweden and Norway, the author protecting his

rights by first publication in these countries, must be a citizen of one

of the countries within the International Copyright Union or must

acquire rights through a publisher therein; though in the other

countries of the Union, this question of nationality is immaterial. In

Norway and Denmark, there must be reservation of right of recitation,

but in Norway this lapses in any event at the end of three years,

provided the recitation does not take the shape of a dramatic

performance. In Holland and the Dutch Indies, reservation of playright

must be given, and printing within the country has hitherto been

required to protect a published work. In Hungary, the author of a play

must give his name on the title-page or in the announcement of the play,

and protection is extended to foreigners who have been for two years

rate-payers and residents in Hungary, as well as those whose countries

have reciprocal relations. In Finland, the author's name and reservation

of playright must be given on the printed copy, and protection is

extended to foreigners on condition of residence and publication in

Finland.

Most of the smaller European countries and many South American

countries, including playright under copyright, base protection on

reciprocal protection of their citizens in other countries, while

protection of performing rights in Brazil requires notice on printed

plays of the reservation of royalty for performance. In many oriental

countries, as Egypt, China, etc., protection is afforded to some extent

in the consular courts.

{Sidenote: Pan American Union}

In the Pan American Union, the Buenos Aires convention of 1910

specifically includes dramatic and musical works as literary works,

without special provisions.

XII

MECHANICAL MUSIC PROVISIONS

{Sidenote: "Canned music" contest}

As the international copyright provision with the manufacturing clause

was the central feature of the copyright campaign culminating in the law

of 1891, so the provision for the control of mechanical music with the

compulsory license clause was the central feature of the contest

culminating in the act of 1909. This came to be known as the "canned

music" fight, and arguments pro and con consumed the greater part of the

hearings before the Committees on Patents. The solution finally reached

was in the provisos added to the musical subsection (e) of section 1 of

the bill, which in full is as follows:

{Sidenote: Mechanical music provisos}

{Sidenote: Compulsory license}

"(e) To perform the copyrighted work publicly for profit if it be a

musical composition and for the purpose of public performance for

profit; and for the purposes set forth in subsection (a) hereof, to make

any arrangement or setting of it or of the melody of it in any system of

notation or any form of record in which the thought of an author may be

recorded and from which it may be read or reproduced: _Provided_, That

the provisions of this Act, so far as they secure copyright controlling

the parts of instruments serving to reproduce mechanically the musical

work, shall include only compositions published and copyrighted after

this Act goes into effect, and shall not include the works of a foreign

author or composer unless the foreign state or nation of which such

author or composer is a citizen or subject grants, either by treaty,

convention, agreement, or law, to citizens of the United States similar

rights: _And_ _provided further, and as a condition of extending the

owner of a musical copyright has used or permitted or knowingly

acquiesced in the use of the copyrighted work upon the parts of

instruments serving to reproduce mechanically the musical work, any

other person may make similar use of the copyrighted work upon the

payment to the copyright proprietor of a royalty of two cents on each

such part manufactured, to be paid by the manufacturer thereof; and the

furnish, a report under oath on the twentieth day of each month on the

number of parts of instruments manufactured during the previous month

serving to reproduce mechanically said musical work, and royalties shall

be due on the parts manufactured during any month upon the twentieth of

the next succeeding month. The payment of the royalty provided for by

this section shall free the articles or devices for which such royalty

has been paid from further contribution to the copyright except in case

of public performance for profit: _And provided further_, That it shall

be the duty of the copyright owner, if he uses the musical composition

himself for the manufacture of parts of instruments serving to reproduce

mechanically the musical work, or licenses others to do so, to file

notice thereof, accompanied by a recording fee, in the copyright office,

and any failure to file such notice shall be a complete defense to any

suit, action, or proceeding for any infringement of such copyright.

{Sidenote: Damages}

"In case of the failure of such manufacturer to pay to the copyright

proprietor within thirty days after demand in writing the full sum of

royalties due at said rate at the date of such demand the court may

award taxable costs to the plaintiff and a reasonable counsel fee, and

the court may, in its discretion, enter judgment therein for any sum in

addition over the amount found to be due as royalty in accordance with

the terms of this Act, not exceeding three times such amount.

{Sidenote: Public performance}

"The reproduction or rendition of a musical composition by or upon

coin-operated machines shall not be deemed a public performance for

profit unless a fee is charged for admission to the place where such

reproduction or rendition occurs."

This provision, though somewhat involved in form, tells its own story,

and there has thus far been no occasion for judicial construction.

{Sidenote: The compromise result}

In the series of discussions before the Committees, the friends of

composer to control absolutely the mechanical reproductions of his work,

while the representatives of "canned music" argued at first that

mechanical reproduction should be permitted without reference to

reproductions of a musical work on the sole condition of a specified

payment to the copyright proprietor. The provision as actually adopted

was a compromise upholding the negative right of the author to prevent

mechanical reproduction, but requiring him, in the event of a grant of

authority to any one manufacturer to reproduce his work mechanically, to

extend that privilege to any other manufacturer on payment of the

specified royalty. This scheme is practically modeled on what was known

as the Pearsall-Smith royalty plan, which, as proposed for books, was

stoutly fought by the proponents of the copyright act of 1891,

throughout that memorable copyright campaign.

{Sidenote: Judicial construction}

In the case of the White-Smith Music Pub. Co. _v._ Apollo Co., in which

the AEolian Co. was supposed to be the real complainant, the

representatives of the musical author were, in 1906, denied protection

against the mechanical music rolls made by the defendant, by the Circuit

Court of Appeals, where the judges considered themselves "constrained"

by the necessity of strict construction to decide that "a perforated

roll is not a copy in fact of complainant's staff notation," while

saying "that the rights sought to be protected belong to the same class

as those covered by the specific provisions of the copyright statutes."

It was presumed by many during the copyright campaign that the Supreme

Court would make a broad construction of the statute, but that court

held, February 24, 1908, in an opinion written by Justice Day, that the

considerations adduced "properly address themselves to the legislative

and not to the judicial branch of the Government" and that "as the act

of Congress now stands, we believe it does not include these records as

copies or publications of the copyright music involved in these cases."

Justice Holmes, while not dissenting, added a memorandum to the effect

that "the result is to give to copyright less scope than its rational

significance and the ground on which it is granted seems to me to

demand.... On principle, anything that mechanically reproduces that

collocation of sounds ought to be held a copy, or if the statute is too

narrow, ought to be made so by a further act, except so far as some

extraneous consideration of policy may oppose." While the judges thus

felt "constrained" to deny relief, their strong language in defense of

authorities in the framing and the passage of the new code.

This decision was confirmatory of an earlier decision, in Stern _v._

Rosey in 1901, of Judge Shepard in the Court of Appeals in the District

of Columbia, that the mechanical reproduction of two copyrighted songs

could not be prevented under the existing law.

{Sidenote: Punishment of infringement}

Specific and elaborate provision is made for the punishment of

infringers under the mechanical music proviso (sec. 1, e) by sec. 25, e:

{Sidenote: Notice to proprietor of intention to use}

"Whenever the owner of a musical copyright has used or permitted the use

of the copyrighted work upon the parts of musical instruments serving to

reproduce mechanically the musical work, then in case of infringement of

such copyright by the unauthorized manufacture, use, or sale of

interchangeable parts, such as disks, rolls, bands, or cylinders for use

in mechanical music-producing machines adapted to reproduce the

copyrighted music, no criminal action shall be brought, but in a civil

action an injunction may be granted upon such terms as the court may

impose, and the plaintiff shall be entitled to recover in lieu of

profits and damages a royalty as provided in section one, subsection

(e), of this Act: _Provided also_, That whenever any person, in the

absence of a license agreement, intends to use a copyrighted musical

composition upon the parts of instruments serving to reproduce

mechanically the musical work, relying upon the compulsory license

provision of this Act, he shall serve notice of such intention, by

registered mail, upon the copyright proprietor at his last address

disclosed by the records of the copyright office, sending to the

so to do the court may, in its discretion, in addition to sums

hereinabove mentioned, award the complainant a further sum, not to

exceed three times the amount provided by section one, subsection (e),

by way of damages, and not as a penalty, and also a temporary injunction

until the full award is paid."

{Sidenote: Copyright Office form and fees}

The Copyright Office provides a special form (U) on a blue card for

registration of "notice of use on mechanical instruments," in which the

or has licensed the use of said composition for the manufacture of parts

of instruments serving to reproduce mechanically such musical work." The

recording fee for such notice, as fixed by the statute (sec. 61), is

twenty-five cents for the first fifty words and twenty-five cents

additional for each additional hundred words.

For recording and certifying the license referred to (sec. 1, e) the

statute provides (sec. 61) for a fee of one dollar for not over three

hundred words, two dollars if not over one thousand words and one dollar

for each additional one thousand words or fraction thereof over three

hundred words.

{Sidenote: The constitutional question}

The actual fixing of a specified price, as that of two cents or a

halfpenny on each reproduction, is a feature quite new in law, American

or English, and involves a serious constitutional question. Congress has

granted to the Interstate Commerce Commission, and state legislatures to

specified authorities, as public service commissions, power to regulate

prices; and the U. S. Supreme Court, in 1909, confirming the N. Y. Court

of Appeals in the Consolidated Gas Co. cases, upheld the application of

the sovereign power of the state to limit the price of gas to 80 cents

per 1000 cubic feet, as sold by a corporation enjoying a public

franchise. In this compulsory license provision of the copyright code,

Congress has gone further in two directions: it has fixed a royalty

price, not by definition or limitation of a "reasonable" price, but

absolutely, and it has applied this provision not to a corporation

enjoying franchise privileges, but to the individual owner of property

created by his own labor.

{Sidenote: English law}

The English laws had not mentioned mechanical reproduction up to the

musical copyright act of 1906, which in section 3 expressly provided

that "'pirated copies' and 'plates' shall not, for the purposes of this

Act, be deemed to include perforated music rolls used for playing

mechanical instruments, or records used for the reproduction of sound

waves, or the matrices or other appliances by which such rolls or

records respectively are made." The test case meanwhile on this question

was that of Boosey v. Whight, which was finally decided in the Court of

Appeal in 1900, with respect to the use of copyrighted songs on the

perforated rolls of the AEolian. Justice Sterling in the lower court had

decided that the perforations were not an infringement of the copyright

but that the marginal directions for playing might be such; Justice

Lindley, M. R., held with him that the perforated roll was not a "copy"

of the sheet music, but overruled him on the second point, holding that

the directions, though copied from the printed page, were neither music

nor a literary composition.

{Sidenote: The new British code}

The new British measure as prepared in 1910 included as incident to

work, to make any record, perforated roll, cinematograph film, or other

contrivance by means of which the work may be mechanically performed or

delivered," thus in the simplest fashion completely covering the control

of mechanical reproduction in conformity with the convention of Berlin.

But in the Parliament of 1911 the bill emerged from committee stage with

an elaborate proviso, based on the American precedent, excepting from

the definition of infringement contrivances for the mechanical

reproduction of sounds on (1) proof that the copyright owner has

previously acquiesced in mechanical reproduction, (2) prescribed notice

of intention, and (3) payment of royalty of 2-1/2 or 5 per cent with a

minimum of a halfpenny for each record, or in the case of different

works on the same record, to each copyright proprietor.

{Sidenote: The Berne situation, 1886}

When the international representatives met at Berne in 1886, the

mechanical reproduction of music was confined chiefly if not wholly to

Swiss music-boxes and orchestrions and to hand-organs, of comparatively

little commercial importance; and, possibly with some thought of the

recognition of the hospitality of Switzerland, little emphasis was

placed on the protection of musical composers against mechanical

reproduction of their works. In fact, the final protocol of the Berne

Convention of 1886 contained, as clause 3, the following paragraph: "It

is understood that the manufacture and sale of instruments for the

mechanical reproduction of musical airs which are copyright, shall not

be considered as constituting an infringement of musical copyright."

{Sidenote: Lack of action at Paris, 1896}

Despite strong representations at the congresses of the International

Association for the protection of literary property, held at London in

1890, Neufchatel in 1891, and Milan in 1892, and a vigorous endeavor in

connection with the Paris convention of 1896 to replace this clause, it

was not modified until the convention of Berlin in 1908, in preparation

for which a strong resolution was passed at the congress of the

International Association at Vevey in 1901.

{Sidenote: The Berlin provision, 1908}

With the increasing development of the phonograph and of the mechanical

player, mechanical reproductions became so important a matter to musical

composers and publishers, that much of the discussion in respect to the

amendatory convention of Berlin of 1908 was upon this subject. In the

amended convention, the subject was fully covered by article 13:

"Authors of musical works have the exclusive right to authorize: (1) the

adaptation of these works to instruments serving to reproduce them

mechanically; (2) the public performance of the same works by means of

these instruments.

"The limitations and conditions relative to the application of this

article shall be determined by the domestic legislation of each country

in its own case; but all limitations and conditions of this nature shall

have an effect strictly limited to the country which shall have adopted

them.

"The provisions of paragraph 1 have no retroactive effect, and therefore

are not applicable in a country of the Union to works which, in that

country, shall have been lawfully adapted to mechanical instruments

before the going into force of the present Convention.

"The adaptations made by virtue of paragraphs 2 and 3 of this article

and imported without the authorization of the parties interested into a

country where they are not lawful, may be seized there."

{Sidenote: German precedents}

In Germany, under the general copyright law of 1870, the higher courts

gave to musical composers control over mechanical reproductions from

which, as the industry grew, the authors or publishers obtained some

little return. But succeeding the adoption of the permissive clause in

the Berne convention of 1886, it was proposed in the new copyright law

to free mechanical reproductions from the control of the composer. A

protest was at once made by musical authors and publishers, which

resulted in a modification of the form proposed by the government and

the addition of a clause giving control where the reproduction involved

personal interpretation. In this form the "unfortunate section 22"

became part of the law of 1901 relating to copyright in literary and

musical works. Section 22 was in the following language:

"Reproduction is permitted when a musical composition is, after

publication, transferred to such discs, plates, cylinders, bands and

similar parts of instruments for the mechanical rendering of pieces of

music. This provision is applicable also to interchangeable parts,

provided that they are not applied to instruments by which the work can,

as regards strength and duration of tone and tempo, be rendered in a

manner resembling a personal performance."

{Sidenote: Law of 1910}

This had the extraordinary and contradictory effect of giving the author

control over the finer reproductions of his works but denying to him any

control over the cruder reproductions, as on hand-organs, orchestrions,

etc. The opposition which developed against this impossible situation

was largely influential in bringing about the modification at Berlin in

1908 of the Berne clause. The law of May 22, 1910, amended the previous

general laws in conformity with the Berlin convention, especially by

extending protection to the mechanical reproduction of music and

cinematograph reproduction of artistic works. Section 22 of the law of

1901 was specifically replaced by an elaborate section, modeled on the

American compulsory license provision and requiring a composer who

permitted mechanical reproduction to grant similar rights on equal terms

to any other manufacturers domiciled in Germany, with provisions for

reciprocity and for the treatment of non-German composers through the

tribunals of Leipzig. This law became effective coordinately with the

Berlin convention on September 9, 1910, and in connection with it an

ordinance promulgated by the Emperor July 12, 1910, defined the time

during which mechanical reproductions already made of copyrighted works

should still be permitted. The use of extracts from musical as from

other works, as perhaps in _potpourris_, seems however still to be

permitted as a result of the law of 1901.

{Sidenote: Germany and the United States}

As a result of the reciprocal provisions of the new German law, the

President of the United States on December 8, 1910, proclaimed

reciprocal relations between Germany and the United States with

reference to mechanical reproductions of music. In the opinion of May 6,

1911, approved by the Attorney-General, a Presidential proclamation is

required to determine "the existence of reciprocal conditions" as to the

mechanical music provision (sec. 1, e) as in respect to sec. 8; but as

the proclamation of December 8 did not recite that reciprocal conditions

existed between September 9 and December 8, 1910, it is held that "it

would not afford evidence sufficient to sustain an action for

infringement between said dates."

{Sidenote: French precedents}

In France the general copyright act of 1793, as considered to cover

mechanical music, was interpreted or modified by the act of 1866, which

enacted that "the manufacture and sale of instruments serving to

reproduce mechanically musical airs which are still in the private

domain, does not constitute musical infringement." In the suit of Enoch

_v. Societe des phonographes et gramophones_, the Civil Court of the

Seine had decided in 1903 that phonographic instruments were excepted

from the protection of the law of 1793 by the "general immunities"

concerning the mechanical musical instruments in the act of 1866. But in

1905 the Court of Appeals of Paris reversed this decision, holding that

the law of 1866 applied solely to musical airs, that is, those involving

no words, on the ground that the law of 1793 was enunciatory of the

rights of authors, applying to all modes of publication and

distribution, and that the word "publication" should be understood

broadly "as jurisprudence has applied it to numerous modes of

publication discovered since the law of July 19 and 24, 1793, and the

Code of 1810, and as nothing prevents its extension, in consequence of

scientific progress"; and it therefore concluded that literary works

either by themselves or associated with music were practically under the

law of 1793 and not exempted by the law of 1866. A more recent case, in

the Court of Commerce of the Seine in 1905, resulted, however, in the

dismissal of a suit for infringement. France accepted the Berlin

convention, June 28, 1910; but its provision in article 13, that "the

limitations and conditions" as to mechanical music protection "shall be

determined by the domestic legislation of each country in its own case,"

makes uncertain whether protection becomes effective in the absence of

specific legislation.

{Sidenote: Belgian precedents}

In Belgium in 1904, in the suit of Massenet and Puccini _v. Compagnie

Generale des phonographes, et al._, it was held by the court of first

instance of Brussels that the introduction for sale of discs and

cylinders reproducing the musical compositions of the plaintiffs was

illegal and liable for damages and punishable as an infringement. This

decision was, however, overruled by the Court of Appeals of Brussels in

1905. Belgium accepted the Berlin convention, May 23, 1910, has since

protected mechanical reproduction, and was proclaimed as in reciprocal

relations with the United States, June 14, 1911.

{Sidenote: Italian precedents}

In Italy the copyright law was considered in relation to mechanical

instruments by several court decisions of which the latest and most

important seems to be in the case of the _Societa Italiana d. Autori v._

Gramophone Co. of London, in which, in 1906, the Royal Court of Milan

held that reproductions of music by gramophone constituted infringement.

This decision held that article three of the Berne convention of 1886

could not derogate from or modify the domestic private law of 1882, and

as the Italian law specifically covers publication and reproduction "by

any method," it includes gramophone discs. "Publication means a process

by which the intellectual concept of the artist is revealed, and brought

to the knowledge of others." "What the legislature wanted has been this:

that the author be the exclusive owner of the external form in which the

creation of the mind has been fixed, and, so to speak, materialized; and

that the right be reserved to him to get from his studies and his

exertions all the economic benefits which he could derive therefrom."

{Sidenote: Other countries}

In the laws of Switzerland of 1883, and Monaco and Tunis of 1889, the

fabrication and sale of mechanical instruments or devices for

reproducing musical airs were excepted from the definition of piracy.

But all these countries have ratified the Berlin convention "without

reservation." Luxemburg and Norway have applied the Berlin provision and

were proclaimed as in reciprocal relation with the United States on June

14, 1911. Russia has followed American precedent in the new law of 1911,

but has no reciprocal relations with the United States.

{Sidenote: Argument for inclusion}

As the opposition to the control by musical composers of mechanical

reproductions of their works is still strong in the United States and in

several countries, notwithstanding recent conventions and legislation,

and is based largely upon restrictive definitions of the words

"writings" and "copies" or their equivalent in other languages, it may

be well to include here the argument made by the writer as

Vice-president of the American (Authors) Copyright League, at the

Congressional hearings on the new American code, of which the essential

portions are as follows:

"The American Copyright League stands, as it has stood for a quarter of

a century, simply and solely for the protection of authors' rights to

the fullest extent, and it asserts that a musical composer is as fully

entitled as is the author of any other creative work to the exclusive

and full benefits of his compositions, in whatever manner reproduced.

The opponents of the bill base their objections largely on a restrictive

definition of the word 'writings,' and criticise the bill because this

word 'writings' is interpreted throughout the bill by the word 'works,'

although this accurately reflects the understanding of Congress and the

interpretation of the courts. They would, in fact, confine copyright

protection specifically, it may be said, to e-y-e-deas, that is, visible

records, and exclude as not visible or legible by the eye, copies of

musical compositions mechanically made and interpreted.

{Sidenote: Inscribed writings}

{Sidenote: Direct sound-writing}

"The earliest _writing_ which remains to us is in the Assyrian

wedge-shaped inscriptions, made by pressing the end of a squared stick

into a soft clay cylinder; the phonograph point inscribes its record in

exactly the same manner upon the 'wax' or composition of the cylinder or

disc, for the mechanism only revolves the roll, and the point is

actuated by the sound vibrations. The words 'phonograph,' 'graphophone'

and 'gramophone' literally mean 'sound-writing,' for the Greek form

_graph-_, the Latin form _scrib-_, and the Saxon form _write_, equally

parts of our language, denote exactly the same meaning. It is even

probable that a future development of phonograph impressions (the third

dimension being translated into breadth of stroke as can be mechanically

done) will give ultimately a visual phonograph alphabet even more

natural and logical than Professor Bell's remarkable system of 'visible

speech,' which, of course, like all alphabets, can be read only when the

reader has mastered the significance of the symbols. Mr. Edison has

himself made some experiments in this direction, though the confusion

from the overtones, which give _quality_ of speech, has so far prevented

result. A large share of literary productivity to-day is by

voice-dictation recorded mechanically by a stenographer on the

typewriter or directly on the phonograph disc, and I may instance from

personal experience a further step. As one of the committee for the

Edison birthday dinner, commemorating the twenty-fifth anniversary of

his invention of the incandescent lamp, I was asked to supply some

original verse, and it occurred to me to put this in shape by help of

Mr. Edison's inventions, without direct or indirect hand- or

typewriting. Accordingly I completed the verses mentally without use of

paper and voiced them into an Edison phonograph, verifying this through

the telephone, and the lines were set in type by the printer from the

sound-record, and thus printed on the _menu_ for the dinner. Thus my

formulated ideas were recorded through the nerves and other mechanism of

the vocal organs, instead of through the nerves and other mechanism of

the hand, directly by the phonograph point on the phonograph cylinder;

and it seems a common-sense inference that if I had caused copies of the

phonograph cylinder, though not legible in the ordinary sense, to be

published instead of the secondary copies in print, I should be as much

entitled to copyright protection in the one case as in the other. The

'telegraphone' directly records on a steel tape the sounds of the human

voice as sent through the telephone, and by an absolutely invisible

re-arrangement of the magnetized particles of steel, makes a writing in

which there is no possibility of visual legibility.

{Sidenote: Music transmissal}

"Moreover, invention is now developing a series of reproducing

mechanisms such as Dr. Cahill's 'telharmonicon' or 'dynamophone,' in

which musical compositions will be translated to the ear without the

interposition even of a cylinder or disc sound-record; and it seems a

common-sense inference that the musical composer should have as full

rights in this as in other forms of copying or reproducing his thought.

Buda-Pesth is said to have not only a telephone 'newspaper,' but a

system of reading novels and other works of literature to telephone

subscribers, and if this should reach such proportions as substantially

to reduce the sale of the printed copies of a new novel from which the

author would receive benefit, it would also seem a common-sense

inference that the same or an equivalent royalty should be paid him.

{Sidenote: Music notation}

"In music writing or notation there are two and only two essentials:

relative vertical position, showing pitch, and relative horizontal

position, showing duration of notes. The earliest form of our present

music writing is the system of the 'large,' 'long,' 'breve' and

'semi-breve' notes, in which the pitch was shown by the vertical

relations of the notes, and the length of the note by the length of the

black mark, the 'large' mark being twice the length of the 'long' mark.

This corresponds closely to the perforated music roll of to-day, which

could be read by a practiced eye with and probably without staff lines,

to the extent that if every other form of reproduction were destroyed,

the melody and harmony of a musical work could be reproduced into the

ordinary notation of music writing. I speak from personal knowledge of

these music rolls, having had a mechanical instrument for some years.

The different kinds of rolls differ in the relative spacing and in

distance from the edge of the roll, which gives the standard, but a

foreshortened photograph of any, bringing them to the same scale, would

pattern closely the early form of music writing above cited. The London

postal telegraph system dispatches newspaper material from St. Martin's

le Grand throughout the kingdom from continuous perforated ribbons made

somewhat in the same way, visible and legible only to an expert, and

reproductions by the medium of this device would certainly not vitiate

{Sidenote: The law prior to 1909}

"It may be observed that the existing law gives to the author or

proprietor of a musical composition the sole liberty not only of

printing, but of publishing, copying, vending, performing, or

representing a musical composition; that the statute does not restrict

'copying' either to a copy of 'staff notation' or from or in any

particular form, but prohibits in general any copy of a musical

composition; that there is no suggestion in the statute that the copy

must be one to be read, _e. g._, a copy of a sculpture; that any

sound-record is in the wide sense as truly a copy of a musical

composition as a printed sheet, which is not a copy, in fact, of the

author's manuscript writing; and that as the roll has for its sole

purpose the performing by the aid of a mechanism useless without it, of

a musical composition, just as a printed sheet of music has the sole

purpose of the performing by the aid of the voice, the piano, or the

orchestra, of a musical composition, the maker and vendor of the roll is

in exactly the same position as the maker or vendor of a printed sheet

of music.

{Sidenote: Manuscript and copies}

"But even if phonograph and perforated records should not be considered,

as is sculpture, to be 'writings,' the arguments of the opponents of

this bill do not fit the case. The Constitution explicitly provides that

authors shall have _exclusive rights_ to their writings. This cannot

mean exclusive rights to their written manuscripts, for these are

protected by common law and no constitutional provision was necessary.

It meant and means evidently that authors shall have exclusive rights to

the benefits of their writings, the usufruct of the property they have

created, and that means practically a monopoly control over all copies

or reproductions from such writings, whether the copies are in

handwriting, printing, or any other form. A musical score is definitely

a writing, for it is even more than a literary manuscript, originally in

the personal handwriting of the composer himself, without the

intervention of a stenographer or a typewriting machine. Therefore, if

the narrowest meaning of the word 'writings' should be interpreted into

the Constitution such as would exclude sculptures and other works which

are admittedly proper and legal subjects of copyright, it would still

specifically include musical and dramatic as well as literary

manuscripts. There is no specification in the Constitution confining the

exclusive rights over writings to copies in handwriting or print or any

other stated process of reproduction; in fact, the Constitution does not

use the word 'copyright' or in any way limit by specification the

comprehensiveness of the exclusive rights Congress is thus authorized to

secure. Indeed, Congress in the copyright laws has interpreted the

Constitution to cover the several artistic or reproductive processes

from time to time developed or invented; thus in the law of 1865 the

provisions of the copyright laws were extended to include 'photographs,'

which did not exist at the time of the adoption of the Constitution--which

word specifically means 'light-writings' as phonograph records

specifically mean 'sound-writings.'

{Sidenote: Protection of the inventor}

{Sidenote: The counter argument}

"The position taken by the American Copyright League is that an author

is literally entitled to the exclusive right, that is, the exclusive

_benefit_, in his writings, in whatever form the writings, that is, his

recorded thoughts, can be reproduced for sale or gain. If Mark Twain

writes a book or Bronson Howard a play or Sousa or Victor Herbert a

musical composition or Millet makes a painting or French a statue, each

is equally entitled to whatever benefit inures from his creative genius.

Mr. Sousa has stated clearly that although Caruso has been paid

$3000--and the fact widely advertised--for singing into a phonograph

record, and his own band (not under his leadership) has also been paid

for playing his compositions and those of others into the phonograph

horn, he has never received as a musical composer one cent for such use

of his creations, though from twenty to a hundred of his compositions

are to be found on the catalogues of the several manufacturers of

mechanical instruments. Mr. J. Howlett Davis, who properly appeared as

an inventor in defense of his own inventions in mechanical instruments,

which he mistakenly believes would be rendered useless if the copyright

protection were extended to sound-records, really asked that Congress

should protect the thing which he had invented, and compel users to pay

for it, but should permit him to use the thought which the musical

composer had invented and expressed, without paying for it. His argument

analyzed presents an even stronger argument for the proposed copyright

bill than for the protection of patented inventions. When Mr. Sousa buys

a patented cornet he has paid for the use of it, but Mr. Sousa makes no

claim either to make another cornet like it or to play copyrighted

musical compositions for profit without payment or permission. A piano,

a pianola, a music roll or new form of mechanism, is patentable; a

musical composition as played on a piano by hand or by mechanism,

whether reproduced on a printed sheet or a mechanical roll, is

copyrightable; but each should have like protection. I speak from

specific knowledge as one who has taken out patents as well as

copyrights and as the active head for some years of the Edison

Illuminating Company of New York and a participant in successfully

defending the Edison lamp patents. Mr. Edison, both as an inventor and

as a manufacturer of his own inventions, has profited much more than a

million dollars from his patents, and would naturally be expected to be

foremost in upholding the right of authors to payment for their brains."

{Sidenote: Complete protection}

The acceptance by most countries within the International Copyright

Union of the Berlin convention, without reservation on this question of

mechanical music, sets an example of complete protection of the musical

composer which it is hoped may be ultimately adopted by the United

States as well as by other countries.

XIII

ARTISTIC COPYRIGHT

{Sidenote: Threefold value in art works}

The artist-author, by the labor of his brain and hand, produces three

classes of property right or a threefold value: he receives recompense

from the sale of the original work made by his hand, or from the

exhibition of it, or from the reproduction and sale of copies. The new

American code is perhaps in advance of legislation in any other country

in the protection of the artist, for it assures to him separate values

in the right to sell his work and the right to reproduce and sell

copies, neither one of which rights is necessarily transferred with the

other; it enables him to copyright his original work before the

reproduction of copies, though it does not make absolutely clear whether

the exhibition without restriction of an uncopyrighted work results in

dedication; and it protects his right to control and profit from

reproductions, with the simplest possible copyright notice, not

including date, though as to lithographic and photo-engraving

reproductions it requires manufacture in this country. The literary,

dramatic or musical author produces no value in the original work

itself, except as his fame may ultimately make his manuscript valuable

as an autograph, and in this respect the artist-author has an advantage

of practical importance in the general provision separating the

show-right or right of exhibition is not as specifically treated or as

clearly defined and protected as is playright or right of performance in

the case of drama or music.

{Sidenote: American provisions}

The copyright of works of the fine arts and cognate works is

specifically provided for in the code of 1909 by including as

subject-matter of copyright (sec. 5) the following divisions: "(f) Maps;

(g) Works of art; models or designs for works of art; (h) Reproductions

of a work of art; (i) Drawings or plastic works of a scientific or

technical character; (j) Photographs; (k) Prints and pictorial

illustrations." It is not intended to include under subsection (k)

labels or prints of advertising or commercial character which may be

registered as trade-marks under the Trade-Mark law in the Patent Office.

The proprietor of a work of art is given in addition to the general

rights (sec. 1, a) the specific rights (sec. 1, b) "to complete,

execute, and finish it if it be a model or design for a work of art."

{Sidenote: Copyright Office classification definitions}

The new Copyright Office Rules and Regulations, promulgated 1910, define

these classifications in the following language:

"11. _(f) Maps._--This term includes all cartographical works, such as

terrestrial maps, plats, marine charts, star maps, but not diagrams,

astrological charts, landscapes, or drawings of imaginary regions which

do not have a real existence.

"12. _(g) Works of art._--This term includes all works belonging fairly

to the so-called fine arts. (Paintings, drawings, and sculpture.)

"Productions of the industrial arts utilitarian in purpose and character

are not subject to copyright registration, even if artistically made or

ornamented.

"No copyright exists in toys, games, dolls, advertising novelties,

instruments or tools of any kind, glassware, embroideries, garments,

laces, woven fabrics, or any similar articles.

"13. _(h) Reproductions of works of art._--This term refers to such

reproductions (engravings, woodcuts, etchings, casts, etc.) as contain

in themselves an artistic element distinct from that of the original

work of art which has been reproduced.

"14. _(i) Drawings or plastic works of a scientific or technical

character._--This term includes diagrams or models illustrating

scientific or technical works, architects' plans, designs for

engineering work, etc.

"15. _(j) Photographs._--This term covers all positive prints from

photographic negatives, including those from moving picture films (the

entire series being counted as a single photograph), but not

photogravures, half tones, and other photo-engravings.

"16. _(k) Prints and pictorial illustrations._--This term comprises all

printed pictures not included in the various other classes enumerated

above.

"Articles of utilitarian purpose do not become capable of copyright

registration because they consist in part of pictures which in

themselves are copyrightable, e. g., puzzles, games, rebuses, badges,

buttons, buckles, pins, novelties of every description, or similar

articles.

"Postal cards cannot be copyrighted as such. The pictures thereon may be

registered as 'prints or pictorial illustrations' or as 'photographs.'

Text matter on a postal card may be of such a character that it may be

registered as a 'book.'

"Mere ornamental scrolls, combinations of lines and colors, decorative

borders, and similar designs, or ornamental letters or forms of type are

not included in the designation 'prints and pictorial illustrations.'

Trademarks cannot be copyrighted nor registered in the Copyright

Office."

{Sidenote: The question of exhibition}

The new law does not specifically make clear the relation between the

exhibition of works of art and publication, or define whether or not

exhibition may constitute dedication to the public and thus prevent the

protection of the copyright thereafter. But in making copyright a

sequent to publication (sec. 9) and providing (sec. 2) "that nothing in

this Act shall be construed to annul or limit the right of the author or

proprietor of an unpublished work, at common law or in equity, to

prevent the copying, publication, or use of such unpublished work," it

makes it at least probable that the author of an artistic or cognate

work who simply exhibits, does not surrender the right to copyright. The

trend of the courts in recent decisions has been, as in the Werkmeister

case, cited below, to protect exhibited works, at least where any

reservation of rights could be construed into the circumstances of the

exhibition; but it is still uncertain whether the exhibition of a work

of art at a public museum where there is no regulation against copying

or reservation by the artist, might not constitute a dedication and thus

prevent later copyright.

{Sidenote: Protection of unpublished work}

In providing however (sec. 11) specifically "that copyright may also be

had of the works of an author of which copies are not reproduced for

sale, by the deposit, with claim of copyright ... of a photographic

print if the work be a photograph; or of a photograph or other

identifying reproduction thereof if it be a work of art or a plastic

work or drawing," it gives to the artist or the author of a cognate work

an easy means of protecting his production beyond question; and he is

not wise who neglects the simple precaution provided in the law.

{Sidenote: Copyright notice}

It is not made absolutely clear in the new law whether the copyright

notice must be attached to the original of a work of art; but again the

provision for protection is so simple that it is wise to take advantage

of the method of the law, by placing the copyright notice on the

original. The copyright notice may be in the form (sec. 18)

"'Copyright' or the abbreviation 'Copr.' accompanied by the name of the

case of an artistic work. It is further provided that "in the case of

copies of works specified in subsections (f) to (k), inclusive, of

section five of this Act, the notice may consist of the letter C

inclosed within a circle, thus: (C), accompanied by the initials,

monogram, mark, or symbol of the copyright proprietor: _Provided_, That

on some accessible portion of such copies or of the margin, back,

permanent base, or pedestal, or of the substance on which such copies

shall be mounted, his name shall appear."

If the copyright notice is attached to the original, it is not made

clear whether it should be on the face of the work and visible to the

casual spectator; but again the wise artist will take an easy

precaution.

{Sidenote: Deposit}

It is further required (sec. 12) that "if the work is not reproduced in

copies for sale, there shall be deposited the copy, print, photograph,

or other identifying reproduction" required as above stated,

"accompanied in each case by a claim of copyright."

The new Copyright Office Rules and Regulations schedule (17) among

unpublished works that may be registered "(_c_) photographic prints;

(_d_) works of art (paintings, drawings, and sculpture), and (_e_)

plastic works," and states specifically as to the deposit in such cases:

"19. (2) In the case of photographs, deposit one copy of a positive

print of the work. (Photo-engravings or photogravures are not

photographs within the meaning of this provision.)

"20. (3) In the case of works of art, models or designs for works of

art, or drawings or plastic works of a scientific or technical

character, deposit a photographic reproduction."

As deposit in the case of an unpublished work takes the place of

publication and deposit in the case of works reproduced for sale, there

can be no claim for statutory protection of an unpublished work of art

without the deposit of the identifying copy, and the general provision

(sec. 13) for fine and for voiding of copyright in the case of

non-deposit, has, of course, no bearing on unpublished works. Any action

or proceeding in respect to an unpublished work not registered by

deposit must therefore be under common law and not under statutory

provision.

{Sidenote: Summary of requirements}

To sum up, the author of a work of art, who is exhibiting his painting

or statue or other work and not multiplying copies for sale, will assure

himself of full protection if before such exhibition he places on the

original work, in some visible but not obtrusive fashion, the letter C

inclosed in a circle with his name or mark, and deposits a photograph of

such work with the Librarian of Congress or in the mails addressed to

him, accompanied by a claim of copyright,--for which an application form

(J2, "photograph not reproduced for sale") is furnished on request, by

the Copyright Office from Washington,--with inclosure of one dollar.

As soon as the artist multiplies copies for sale, or permits

reproduction of his work, as in a newspaper report of an exhibition, for

instance, he must then take the precaution of depositing two copies of

such reproduction as provided in general by the act, and it is further

provided (sec. 18) "that on some accessible portion of such copies or of

the margin, back, permanent base, or pedestal, or of the substance on

which such copies shall be mounted, his name shall appear." In case two

copies are not so deposited, it is probable that a fine and forfeiture

of copyright would ultimately ensue, as indicated in section 13.

{Sidenote: Material and immaterial properties distinct}

It is specifically provided (sec. 41) that copyright is distinct from

the property in the material object, which accomplishes for the artist

the important result that when he sells his painting he does not

transfer the copyright, but retains that for himself unless he

specifically contracts with the buyer to include in the sale the

decision of the courts that copyright does not pass with a painting

unless distinctly included in the transfer. The provision (sec. 41) is

specific that the copyright "is distinct from the property in the

material object copyrighted, and the sale or conveyance, by gift or

otherwise, of the material object shall not of itself constitute a

transfer of the copyright, nor shall the assignment of the copyright

constitute a transfer of the title to the material object." Thus the

author of a work of art has two separate properties, the painting,

statue or other work in itself, on the one hand, and the copyright or

the right to copyright on the other, neither of which is transferred by

the transfer of the other unless both are specifically included in the

transfer.

{Sidenote: Manufacturing clause covers lithographs and photo-engravings}

{Sidenote: Foreign subjects excepted}

The copyright in certain classes of reproductions of works of art is

dependent however on manufacture in this country, as in the case of

books. This provision no longer includes photographs as in the preceding

law, but is confined specifically (sec. 15) to "text produced by

lithographic process, or photo-engraving process," "illustrations within

a book consisting of printed text and illustrations produced by

lithographic process, or photo-engraving process, and also to separate

lithographs or photo-engravings, except where in either case the

subjects represented are located in a foreign country and illustrate a

scientific work or reproduce a work of art." It is further provided

that "in the case of the book ... if the text be produced by

lithographic process, or photo-engraving process ... the copies so

deposited shall be accompanied by an affidavit ... that such process was

wholly performed within the limits of the United States." This

affidavit, therefore, is not required in the case of separate

lithographs or photo-engravings. The manufacturing provisions chiefly

concern the publishers of books, but they imply that artists cannot send

works abroad to have reproductions made. But by the opinion of January

9, 1911, approved by the Attorney-General, a design, drawing, or

painting made and located abroad intended as "the first step" for

lithographic reproduction, may be registered, if a "work of art"--which

question of fact is to be determined by the Register of Copyrights; and

such lithographic reproductions of it may be imported.

{Sidenote: German post cards}

It was held by the Attorney-General January 27, 1910, that lithographic

reproductions of original paintings in the form of illustrated post

cards made in Germany, are subject to registration, provided the

original paintings may properly be classified as works of art; and thus

importation of such post cards would be permissible.

{Sidenote: Artistic merit unimportant}

While there must be originality in a work of art, especially under

English law, this means little more than a prohibition of actual

copying, and as in the case of literary and dramatic works, artistic

merit is of little importance.

{Sidenote: Application forms}

{Sidenote: Certificates}

The Copyright Office furnishes without charge application forms,

lettered as indicated, for the following classes of art works: (F)

published map; (G) work of art (painting, drawing, or sculpture); or

model or design for a work of art; (H) reproduction of a work of art;

(I) drawing or plastic work of a scientific or technical character; (J1)

photograph published for sale, (J2) photograph not reproduced for sale;

(K) print or pictorial illustration. Thus the applicant should send for

application blank (G), if for an original work of art, (H), if for a

reproduction, or the proper blank in the other specified cases. But it

should be noted that it is both unnecessary and undesirable to apply

separately under different blanks as (G) and (H), since the single

returned by the Copyright Office on receipt of the application form and

of the statutory fee of one dollar, covering the same specified

subjects.

{Sidenote: Term in unpublished work}

When an original work of art is copyrighted, but is not published by

reproduction of copies for sale or distribution, it is uncertain under

the law, as in the case of dramatic and musical compositions, from what

date the copyright protection runs and whether the sole right of

reproducing copies for sale terminates at the end of a statutory term

beginning with the registration of the original work or with its

publication by the reproduction of copies for sale. The Copyright Office

issues a certificate of the registration of the original work as

covering a period of twenty-eight years and will doubtless base a

renewal on the termination of this term; and only a court decision will

determine whether the copyright of the original unpublished work exists

in perpetuity until publication or whether the right to reproduce copies

for sale lapses with the termination of twenty-eight or fifty-six years

from the registration of the original work.

{Sidenote: Date not required}

{Sidenote: Re-copyright objectionable}

The omission of the requirement of date in the copyright notice in the

case of a work of art is significant and important, although it has the

disadvantage that knowledge of the expiration of the term of copyright

can be had only by specific inquiry from the Copyright Office. It has

been the mistaken practice of more than one artist, under the old law,

to enter copyright on his original sketch or on his original work under

date of its beginning, again on the finished original under date of its

completion, and possibly again on reproductions under the date of the

first publication of copies; and when also the artist changed the name

of his work under these progressions, confusion became worse confounded.

From this superfluous zeal and mistaken carefulness, serious results

have come, as in Caliga _v. Inter-Ocean_ Newspaper Co., decided in 1909

by the U. S. Supreme Court through Justice Day, wherein an artist failed

to protect himself against an infringing reproduction, because he

brought suit under a second copyright which he had entered on finishing

his picture, instead of under the original and lawful copyright, under

which he had originally entered his work. The fact that by this second

copyrighting he laid claim to a longer term than the law allowed, made

the second copyright void and a suit under it of no avail. Under the new

law the author of a work of art is not only given specifically the

exclusive right "to complete, execute, and finish it if it be a model or

design for a work of art" as in the previous law, so that an artistic

work is protected by one copyright from design to completion and

reproduction; but he may also protect his original work during its

progress or exhibition before publication and thus safeguard his future

right to control and benefit from the multiplication of copies.

{Sidenote: Exhibition right transfer}

In case of the sale of the original work of art, the right to exhibit,

of course, passes with the original, although the right to copyright and

reproduce copies is expressly reserved to the artist. In view of the

uncertainty whether the unrestricted public exhibition of a work of art

constitutes dedication and prevents copyright thereof, the carelessness

of the purchaser of the original might raise question as to the validity

of later copyright of reproductions by the artist. It is therefore

unwise for an artist to sell the original of a work of art without

affixing to it the required copyright notice and depositing one copy of

an identifying photograph or print.

{Sidenote: Early English decision}

The leading case under English law as to exhibition is that of Turner

_v._ Robinson in the Irish Court of Chancery in 1860, previous to the

passage of the act of 1862 which first provided statutory copyright for

paintings, and interpretative therefore of common law. Turner's "Death

of Chatterton" had been reproduced in a magazine and exhibited at the

Royal Academy and in Manchester, and was thereafter exhibited for the

purpose of obtaining subscriptions for an engraving, in Dublin, where a

photographer copied it and published a stereoscopic reproduction. The

Master of the Rolls held that the painting had never been published

because the exhibitions were on condition that no copies should be made,

and the engraving in the magazine was only a rough representation and

not a publication of the picture. The Court of Appeal also held against

the defendant, but because of his breach of contract, and declined to

decide whether there had been publication in London or Manchester. The

Lord Chancellor, however, expressed the opinion that exhibition at the

Academy, though conditioned, was publication, though a private view in a

studio rather than a picture gallery would not be. The Court of Appeal

did not pass on the further opinion of the Master of the Rolls that the

publication of a print was not publication of the picture. These

confusing opinions left the question in very misty shape and the most

important interpretation of English practice has come from an American

court.

{Sidenote: The Werckmeister leading case}

The latest and leading case as to exhibition is that of Werckmeister

_v._ American Lithograph Co., American Tobacco Co., _et al._, which was

decided by the U. S. Supreme Court in 1907, in an opinion written by

Justice Day. The English artist Sadler had sold, in 1894, to

Werckmeister of the Berlin Photographic Co. the copyright in his picture

"Chorus," which he exhibited at the Royal Academy Exhibition of 1894,

and the design had been reproduced by the American Lithograph Co. for

use on an American Tobacco Co. label, though the photograph had been

given protection by copyright. In reply to the claim of the infringers

that such exhibition constituted dedication to the public, the Supreme

Court's decision quoted from Slater on "The law relating to copyright

and trade-marks."

{Sidenote: U. S. Supreme Court opinion}

"It is a fundamental rule that to constitute publication there must be

such a dissemination of the work of art itself among the public as to

justify the belief that it took place with the intention of rendering

such work common property," the court adding, "and that author instances

as one of the occasions that does not amount to a general publication

the exhibition of a work of art at a public exhibition where there are

by-laws against copies or where it is tacitly understood that no copying

shall take place, and the public are admitted to view the painting on

the implied understanding that no improper advantage will be taken of

the privilege. We think this doctrine is sound and the result of the

best considered cases." The court said further: "We do not mean to say

that the public exhibition of a painting or statue where all might see

and freely copy it might not amount to publication within the statute,

regardless of the artist's purpose or notice of reservation of rights

which he takes no measure to protect."

{Sidenote: Unrestricted exhibition hazardous}

In fact, in Pierce & Bushnell Co. _v._ Werckmeister, in 1896, the U. S.

Circuit Court of Appeals, through Judge Colt, had held that the

exhibition of Naujok's painting of St. Cecilia, in Berlin and Munich,

without copyright notice on the original work, constituted publication

and dedication, and therefore denied protection to photographic copies

thereafter copyrighted and published.

{Sidenote: Reservation on sale}

That the sale of the original work of art as a material object does not

involve the transfer of the copyright is a direct application in the new

American code of previous judicial decisions. In Werckmeister _v._

Springer Lith. Co., in 1894, where the defense contended that the

purchaser of a painting was the person authorized to become the

U. S. Circuit Court in New York, by Judge Townsend. But it may

nevertheless be desirable to include in any contract of sale a specific

reservation of copyright, especially in the case of works executed for

public authorities or to be exhibited in a public place. In Dielman v.

White, in 1900, Judge Lowell in the U. S. Circuit Court in Massachusetts

declined to enjoin a photograph of certain mosaics by Dielman in the

Library of Congress, the original cartoon for which as sent to Venice,

as well as the mosaic work itself, bore copyright notice, on the ground

that the correspondence with the government constituting the contract,

did not clearly reserve to the artist the right to copyright and prevent

copying,--though this decision may be questioned.

{Sidenote: Publication construed}

The courts are disposed to limit the definition of publication to insure

the fullest protection of an author's right. In Werckmeister _v._

Springer Lith. Co. it was further held by Judge Townsend that the

printing in an exhibition catalogue of a cut of a painting was for the

information of patrons and was not publication. In the same case the

defense contended that the sale of an earlier replica of the plaintiff's

painting constituted a publication and forfeited copyright, but the

court held that the replica was not a copy but was made beforehand to

assist in the preparation of the painting afterward copyrighted, and

that there was no publication.

In Falk _v._ Gast, in 1893, where the defense claimed that the copyright

notice was omitted from published copies, referring to a sample sheet of

miniature reproductions sent to dealers for their information and

convenience, the U. S. Circuit Court of Appeals, through Judge Shipman,

held that this issue of sample sheets did not constitute publication.

This doctrine of limitation had a curious application in Harper _v._

Shoppell, in 1886, in which Judge Wallace, in the U. S. District Court,

held, where an electrotyper had sold to a third party an unauthorized

electrotype of a copyrighted illustration, that the copyright law was

not violated because the illustration had not been printed or published.

{Sidenote: Danger of forfeiture}

The artist-author or the proprietor of an artistic copyright should be

most careful to comply with the statutory requirements as to notice and

other formalities, as otherwise copyright may be forfeited. Several

court decisions indicate that the copyright notice should be placed on

the original when exhibited, even if copies are not then reproduced for

sale; and as the question is not made quite clear in the new code, it is

wise to follow this indication. In the original trial in 1902 of the

Werckmeister case, Judge Thomas in the U. S. Circuit Court held that the

omission of copyright notice from the exhibited original waived the

Supreme Court on other grounds as previously stated, and this particular

point remains unsettled.

omitted in later use beyond the control of the copyright proprietor. "If

copied afterwards or put upon a new mount the complainant should not

suffer," said Judge Coxe in Falk _v._ Gast in reference to copies from

which the notice had been separated. In Bennett _v._ Carr, in 1899, the

U. S. Circuit Court of Appeals, through Judge Thomas, non-suited the

complainant because he had not deposited a written description, in

addition to filing identifying copies, both formalities being required

under the old law.

{Sidenote: Limited use and license}

The principle is especially important regarding works of art that a

his work; and this has many times been upheld by judicial decisions. In

the American courts, such cases have usually been settled by preliminary

injunction, without further trial, so that most of the cases are

unreported in the law digests, as in that of Miles _v._ American News

Co., in 1898, where General Miles obtained a preliminary injunction

restraining the distribution by the defendants of "Remington's frontier

sketches," including illustrations made for and copyrighted in General

Miles' "Personal recollections." In the English case of Nicholls _v._

Parker, in 1901, it was held that a license to print illustrations in

the _Graphic_ did not permit their use in another periodical of the

defendant despite the defense of "custom of the trade," which the judge

characterized as "ridiculous." In the important case of Green _v. Irish

Independent_, the Court of Appeal held that the newspaper, though acting

"in good faith and without knowledge," was guilty of infringement in

printing an illustration sent to it as an advertisement which the

proprietor had not licensed for such use. Where, in Guggenheim _v._

Leng, in 1896, the periodical _Sports_ printed and sold as a separate

sheet an illustration licensed for use in the periodical, it was held in

the Queen's Bench Division that publication and sale of the supplement

separately from the paper was beyond the terms of the license and

therefore an infringement.

{Sidenote: Character, not method of use}

"A picture is none the less a picture and none the less a subject of

the U. S. Supreme Court, in Bleistein _v._ Donaldson Lith. Co., in 1903,

the leading case on this subject, in which three lithographs designed

for a circus poster were protected. In Mott _v._ Clow, in 1896, Judge

Grosscup in the U. S. Circuit Court in Illinois had held that

illustrations, in this instance of bathtubs in a trade catalogue, which

"are mere advertisements," are not entitled to copyright; and in

Schumacher _v._ Wogram, in 1888, it had been held by Judge Wallace that

a picture of a young woman holding a bouquet intended for a cigar label

could not be protected as copyright, but should be registered as a

trade-mark. "The distinction here," said Judge Wallace, "seems to be

that a picture expressly intended as a label should be considered a

trade-mark, though a picture which may be used for a label is not for

this reason excluded from copyright." An artistic design for paper-box

covers was held copyrightable in 1910 in De Jonge _v._ Breuker &

Kessler, in the U. S. Circuit Court, by Judge McPherson, who also held

that the same subject could not be protected both under copyright and as

trade-mark.

{Sidenote: Illustration}

That an illustration of a person, incident or scene in a copyright work

is not an infringement of its copyright, was indicated in 1909 in Harper

_v._ Kalem Co., in the opinion of the U. S. Circuit Court of Appeals in

New York, through Judge Ward, who said: "As pictures only represent the

artist's idea of what the author has expressed in words, they do not

infringe a copyrighted book or drama and should not be enjoined." That

illustrations may be protected as part of a book without reference to

the engravings act, was held in Marshall _v._ Bull, in 1901, in the

English Court of Appeal, which held also that though electrotype blocks

had been legally sold, unauthorized reproduction from such blocks

constituted infringement.

{Sidenote: Description of artistic work}

Likewise, a description in words of a copyrighted work of art is

probably permissible without infringement of copyright, when the work is

published or publicly exhibited. But this does not hold good in the case

of an unpublished or privately exhibited work, as was held in 1849 in

the case of Prince Albert _v._ Strange, where a descriptive catalogue of

unpublished etchings by Queen Victoria and the Prince Consort was

enjoined, as well as the exhibition of prints therefrom unlawfully

obtained.

{Sidenote: Portraits}

In the case of portraits, whether by painting, sculpture or photography,

an important question as to ownership arises. A portrait paid for by the

subject or a person other than the artist is the property, for copyright

as well as other purposes, exclusively of that person; but if an artist

produces a portrait at his own expense, even if by the suggestion of

another person, the right to copyright remains with the artist. The

general principle was best stated by Judge Wheeler in 1894, in the U. S.

Circuit Court in New York, in Press Pub. Co. _v._ Falk, where the

_World_ was held to have infringed the copyright in the photograph of an

actress, copyrighted by the photographer and not paid for by her, though

a complimentary copy, given to the actress, had been sent by her to the

newspaper. "When a person has a negative taken and photograph made, for

pay, in the usual course, the work is done for the person so procuring

it to be done, and the negative, so far as it is a picture or capable of

producing pictures of that person, and all photographs made from it,

belong to that person; and neither the artist nor any one else has any

right to make pictures from the negative or copy the photographs, if not

otherwise published, for any one else. But when a person submits himself

or herself as a public character to a photographer for the taking of a

negative, and the making of photographs therefrom for the photographer,

the negative and the right to make photographs from it belong to him. He

is the author and proprietor of the photograph, and may perfect the

exclusive right to make copies by copyright." The same principle was

upheld in the closely similar English case of Ellis _v._ Ogden, in 1894,

by Justice Collins in the Queen's Bench Division. But in the case of

Ellis _v._ Marshall, in 1895, Justice Charles in the same court held

that where two actors had been invited by a photographer to sit for him

in costume and some photographs had also been taken in plain clothes, of

which the actors purchased copies, they were entitled to authorize

publication in a magazine. It may be noted that New York and other

states have statutes forbidding portraiture of persons without their

consent; but this prohibition would probably not apply to photographing

of a crowd, unless the portrait of a special person were lifted out or

made prominent. A photographer may not exhibit a photograph of a patron,

as in his shop window, without the sitter's consent.

{Sidenote: Right of employer}

The employer of an artist in other work as well as portraiture may

become _ipse facto_ the copyright proprietor. In 1871, in Stannard _v._

Harrison, where a wall map had been made by an engraver from rough

sketch and material and from directions given by the plaintiff, the

English Court of Chancery, through Vice-Chancellor Bacon, held: "That

the plaintiff cannot draw himself is a matter wholly unimportant if he

has caused other persons to draw for him. He invents the subject of the

design beyond all question ... this is a work of diligence, industry,

and for aught I know of genius on the part of the plaintiff." This case,

which arose under the engravings acts in England, where an engraving may

be copyrighted by an employer,--though the engraver of his own original

design is the only person entitled to copyright,--is of wide bearing

throughout artistic copyright. On the other hand, in 1898, in Bolton

_v._ London Exhibitions Co., Justice Mathew in the Queen's Bench

Division held that the employer, who had given to the engraver only a

"general idea" of what he desired, was not the party liable for

infringement.

{Sidenote: Photographs}

Photographs, a modern development since the early copyright laws, were

first included with negatives in the American act of 1865, in respect to

which the action of Congress was upheld by the U. S. Supreme Court in

1884 in the decisive case of Burrow-Giles Lith. Co. _v._ Sarony, and in

the English fine arts copyright act of 1862. They are specifically named

(sec. 5, j) in the new American code, and are included specifically or

impliedly under copyright protection in most countries. The peculiar

circumstance that the skill of the photographic artist is not

necessarily shown in the composition of the picture taken, but more

usually in the selection of subject or point of view and treatment in

the process, leads to complexities as to authorship, ownership, etc. It

is unnecessary and indeed undesirable to copyright separately a

photograph of a copyrighted work, of which the general copyright is

comprehensive of all reproductions, but the original copyright notice

including the name of the artist must appear on each photograph or its

mount. An original photograph of an uncopyrighted or uncopyrightable

subject may be copyrighted as a photograph, as was held with respect to

natural scenery in 1903, in Cleland _v._ Thayer, in the U. S. Circuit

Court of Appeals, where a colored photograph of a Colorado pass was

protected. Where a photographer had posed a woman and a child

characteristically, Judge Wheeler in the U. S. Circuit Court in New York

held, in 1891, in Falk _v._ Brett Lith. Co., where defendant had merely

reversed the photograph in a lithographic reprint, that the photograph

was copyrightable and that the photographer was the author. And this

doctrine, that the posing and treatment of a photograph subject gave

justification for copyright, was also upheld in the case of a portrait

of an actress in the same year in Falk _v._ Gast by Judge Coxe. In the

English case of Bolton _v._ Aldin _et al._, in 1895, Justice Grantham in

the Queen's Bench Division held that the photograph of a tiger was

infringed by a drawing from the photograph published in the _Sketch_

magazine. But the copyrighting of a photograph of an uncopyrighted

subject cannot prevent the photographing of the same subject

independently by others, nor can the use of a "general idea" be

prevented. Under the new American code, the fee for registering a

photograph is but fifty cents, if a certificate is not desired, and the

new Copyright Office Rules hold that in moving picture films only one

registration is requisite, "the entire series being counted as a single

photograph."

{Sidenote: Tableaux vivants and moving pictures}

Whether living pictures, _tableaux vivants_, infringe a work of art, is

a difficult question, determinable only by the circumstances of each

case. Moving pictures telling a dramatic story may infringe a dramatic

or even literary work, as well as possibly a work of art, as was decided

in the case of Harper _v._ Kalem Co. But the House of Lords, in 1894, in

the case of Hanfstaengl _v._ Baines, where the proprietor of the

reproducing by sketches living pictures exhibited at a music hall,

patterned after the paintings, decided that the word "design" in the

English law did not cover the _tableaux_ at the music hall. It is

probable, however, that an exact reproduction, as nearly as may be, of a

painting at a public place, might be held an infringement. In 1903 the

Circuit Court of Appeals through Judge Buffington, in Edison _v._ Lubin,

overruled the defense that each picture making up a moving picture

series should be separately registered for copyright. But separable

parts of a composite design, when used separately, must bear separate

by Judge McPherson in the U. S. Circuit Court.

{Sidenote: Exclusions and inclusions construed}

A shadow-trick perforated card, giving an outline of the picture "Ecce

Homo" when held between a light and a screen, was held by

Vice-Chancellor Bacon, in Cable _v._ Marks, in 1882, not to be subject

of copyright. Playing cards have been included as prints by an English

decision.

{Sidenote: Architectural works}

Architectural works are not protected as such under the American code,

the decision of the Congressional Committees being adverse to this

proposal. They are specifically included in the new British code. It is

possible that they might be included under the general designation of

works of art, and drawings or models for buildings might be copyrighted

as "drawings or plastic works of a scientific or technical character."

The question, however, is one of much doubt. In 1903, in Wright _v._

Eisle, the Appellate Division of the N. Y. Supreme Court, through Judge

Woodward, held, where an architect had filed plans with the building

department which he claimed were copied in a house of the defendant,

which plans had not been copyrighted, that the filing of the plans in a

public office constituted publication and as there were no copyrighted

copies, there was no case at common or copyright law.

{Sidenote: Copy of a copy}

A copy of a copy is an infringement of the original work and

incidentally of the direct copy, unless the latter is published without

proper copyright notice by authority of the proprietor of copyright in

the original. This was held in 1892, in Lucas _v._ Williams, by the

Queen's Bench, where a photograph from an engraving was held an

infringement of the original painting; and the decision of Judge

McPherson in the U. S. Circuit Court in Pennsylvania non-suiting, in

Champney _v._ Haag, in 1903, the proprietor of a copyright painting

because the offending photograph infringed only the copyrighted

photograph from which it was directly taken, is not considered good law.

A photograph may infringe the copyright in statuary, as was held in

1907, in Bracken _v._ Rosenthal, in the U. S. Circuit Court.

{Sidenote: Alterations}

As to altered copies and alterations, there have been many judicial

decisions, the gist of which is that a copy is not less an infringement

because it alters details, provided there is copying of a substantial

part; that a copy in another medium not exactly reproducing the original

or a copy of it, is nevertheless an infringement; that a substantial

alteration, or adaptation of an existing work, may in itself be

copyrightable, but that slight alterations will not justify the

copyrighting of a work in the public domain; and that an artist has the

right to prevent alteration of his original work by a subsequent owner,

as involving damage to his professional reputation. Where a copyrighted

portrait of Lillian Russell was combined with a portrait of another

actress, the composite photograph was held to be a violation of the

Circuit Court of Appeals, through Judge Lacombe. So in the English case

of Bolton _v._ London Exhibitions Co., in 1898, where a lithographer

copied the outline of a lion from a copyrighted photograph, and filled

in details from natural histories in making a circus poster, Justice

Mathew in the Queen's Bench Division held that there had been

reproduction of the photograph and that a work of art had been

"vulgarized unlawfully." Where certain etchings and engravings had been

copied by the Brooklyn Photogravure Co., omitting the tints, plate mark

and title, it was held in 1892, in Fishel _v._ Lueckel, by Judge

Townsend in the U. S. Circuit Court in New York that this was an

infringement; said Judge Townsend: "The appropriation of a part of the

work is no less an infringement than the appropriation of the whole,

provided 'the alleged infringing part contains any substantial

repetitions of any material parts which are original and distinctive."

And where a photograph of Julia Marlowe was reproduced in a lithograph,

with many points of dissimilarity, some of them because of difference in

process, it was held in Falk _v._ Donaldson Lith. Co., in 1893, by Judge

Townsend in the U. S. Circuit Court in New York, that the differences

did not constitute a defense. In Dr. Gaunsaulus's book, "The Man of

Galilee," well-known pictures were altered substantially and

artistically, as by the omission of a spinning wheel from a picture of

the Nativity. Copies made from these illustrations were enjoined, though

the original pictures were non-copyrighted, in Monarch Book Co. _v._

Neil, in 1900, by Judge Grosscup in the U. S. Circuit Court in Illinois.

But a slight alteration, by the addition on the negative of a cane, thus

put into the hands of a person in a photograph not copyrighted in its

original form, was held not to justify copyright, in Snow _v._ Laird, in

1900, by Judge Woods in the U. S. Circuit Court of Appeals. In the N. Y.

Supreme Court, in the common law case of Dodge _v._ Allied Arts Co., in

1903, where the plaintiff had painted four historical scenes on

commission which the defendants proposed to have altered, an injunction

pending suit was granted by Judge McCall, thus upholding the common law

or equity right of an artist to be protected against such misuse of his

work.

{Sidenote: Remedies}

For the infringement of a work of art the copyright proprietor is

entitled (sec. 25) to an injunction, the forfeiture of infringing copies

and to damages "as well as all the profits ... or in lieu of actual

damages and profits such damages as to the court shall appear to be

just," not less than $250 nor more than $5000, except that "in the case

of a newspaper reproduction of a copyrighted photograph such damages

shall not exceed $200 nor be less than $50." These damages, within the

limits stated, may be assessed by the court in the case of painting,

statue or sculpture at ten dollars, and in the case of any other works

at one dollar, "for every infringing copy made or sold by or found in

the possession of the infringer or his agents or employees." Under the

old law, damages were confined to copies found in possession, and the

courts were constrained to apply this literally though in several

recorded cases with evident injustice.

{Sidenote: Artistic copyright term}

under the general copyright acts, including the code of 1909 providing

for copyright for twenty-eight and renewal for a second twenty-eight

years, and this is true also in Canada and Newfoundland, where the term

is for twenty-eight with renewal for fourteen years. The Australian code

of 1905 covers artistic copyright specifically in part IV of the act,

which provides for the general term of forty-two years from "the making

of the work" or life and seven years, whichever the longer, but confines

it to artistic work "which is made in Australia."

{Sidenote: British practice}

Artistic copyright in Great Britain, on the contrary, has been protected

by several concurrent acts beginning with the engraving copyright acts

of 1734 and 1767 and including the prints copyright act of 1777, the

sculpture copyright act of 1814, the prints and engravings copyright

(Ireland) act of 1836 and the fine arts copyright act of 1862 covering

paintings, drawings and photographs, previously unprotected,--all

forming part of the English law until repealed by the new code. Under

these several laws, the copyright term for paintings, drawings and

photographs has been the life of the author and seven years, for

engravings twenty-eight years from first publication and for sculpture

fourteen years from first publishing and renewal for fourteen years.

Under the act of 1862--which did not afford protection outside the

United Kingdom, as was affirmed by the Privy Council in 1903, upholding

a Canadian decision, in Graves _v._ Gorrie--copyright in artistic works

began with the making of the work wherever made (except that a foreigner

must be resident in England apparently at the time of making) and did

not depend upon publication; but the international copyright act of 1844

nevertheless denied protection in Great Britain where a work was first

published in a country outside of treaty relations. Registration at

Stationers' Hall, at a cost of one shilling, has been a prerequisite to

protection. The right to copyright lapsed when the original work was

sold by the artist without previous registration or written reservation,

a provision applied in 1909 in Hunter _v._ Clifford.

{Sidenote: Sculpture provisions}

An original work of sculpture was protected only if first published

within the British dominions, if by a British subject or resident,

provided it bore the proprietor's name and date of first publication;

and renewal for a second fourteen years was possible only if the author

was then alive and held the copyright. Toy soldiers, artistically

modeled, were protected in England as a work of sculpture by Justice

Wright in Britain _v._ Hanks, in 1902. Common law protected until and

statute law after publication, _i. e._ when the public in general is

first permitted to view the work.

{Sidenote: Engraving provisions}

An engraving was protected in Great Britain and Ireland, if first

published (and probably also made) within the British dominions,

provided it bore the proprietor's name and date of publication. Prints,

as by lithography or otherwise, were included with engravings; maps,

charts and plans were, however, included as books under the general

protection of the general copyright act. The sale of the plate of an

engraving probably does not transfer the copyright, unless intention to

do so is clearly evident.

{Sidenote: The new British code}

The new British code includes as an "artistic work" under the general

artistic craftsmanship, and architectural works of art and engravings

and photographs." Architectural works are protected only as regards

artistic character or design as distinguished from process or methods of

construction. Photographs have the exceptional term of fifty years from

the making of the original negative, and the owner of such negative at

the time of making is considered the author. Registration is no longer

required.

{Sidenote: Foreign countries}

Works of art are protected in most foreign countries either impliedly or

specifically under general copyright legislation, although sometimes by

special laws. France covers artistic works "whatever may be the merit,

use or destination of the work"; the Scandinavian countries include

specifically drawings, etc., "not works of the fine arts"; in India

form given an article, but not the article itself." Architectural works

are protected in France, Luxemburg and Brazil, but in most countries

only architectural plans, drawings, designs, figures, or models and not

buildings are covered. Geographical and topographical drawings and

technical drawings, maps and charts, illustrations, engravings, in some

cases lithographs, photographs, and negatives are among classes

specified in many countries. In some countries the term of copyright is

different in the case of artistic works. Luxemburg has the peculiar

provision that portraits may not be reproduced until twenty years after

the death of the person portrayed. Photographs are in several countries

protected for a shorter term, frequently five years from taking,

publication or registration as the case may be; in Norway the copyright

may not extend beyond the death of the photographer.

{Sidenote: Berne convention, 1886}

When the International Copyright Union was created at Berne in 1886,

artistic works were conjoined with literary works under like protection

throughout the convention and they were specified (art. IV) as covering

"works of design, painting, sculpture, and engraving; lithographs,

illustrations, geographical charts; plans, sketches, and plastic works

relative to geography, topography, architecture, or science in general;

in fact, every production whatsoever in the ... artistic domain which

can be published by any mode of impression or reproduction." In the

final protocol it was specifically provided: "(1) As regards article IV,

it is agreed that those countries of the Union where the character of

artistic works is not refused to photographs, engage to admit them to

the benefits of the Convention, from the date of its coming into effect.

They are, however, not bound to protect the authors of such works

further than is permitted by their own legislation, except in the case

of international engagements already existing, or which may hereafter be

entered into by them. It is understood that an authorized photograph of

a protected work of art shall enjoy legal protection in all the

countries of the Union, as contemplated by the said Convention, for the

same period as the principal right of reproduction of the work itself

subsists, and within the limits of private arrangements between those

who have legal rights."

{Sidenote: Paris declaration; 1896}

In the amendatory act adopted at Paris in 1896, the final protocol of

1886 was modified respecting architectural and photographic works as

follows (1, a, b): "In the countries of the Union in which protection is

accorded not only to architectural designs, but to the actual works of

architecture, those works are admitted to the benefit of the provisions

of the Convention of Berne and of the present additional act.

"Photographic works, and those obtained by similar processes, are

admitted to the benefit of the provisions of these acts, in so far as

the domestic legislation allows this to be done, and according to the

measure of protection which it gives to similar national works.

"It is understood that the authorized photograph of a protected work of

art enjoys legal protection in all the countries of the Union, within

the meaning of the Convention of Berne and the present additional act,

as long as the principal right of reproduction of this work itself

lasts, and within the limits of private conventions between those who

have legal rights."

{Sidenote: Berlin convention, 1908}

In the Berlin convention of 1908, artistic works were defined (art. 2,

par. 1) by specification as "drawings, paintings; works of architecture

and sculpture; engravings and lithographs; illustrations; geographical

charts; plans, sketches and plastic works relating to geography,

topography, architecture, or the sciences,"--thus covering architectural

works under general copyright. It was further provided by the convention

of 1908 (art. 2, par. 4) that "works of art applied to industry are

protected so far as the domestic legislation of each country allows."

And article 3 provided: "The present Convention applies to photographic

works and to works obtained by any process analogous to photography. The

contracting countries are pledged to guarantee protection to such

works."

{Sidenote: Exhibition not publication}

By the interpretative declaration adopted at Paris in 1896, it was

specifically provided (sec. 2): "By _published_ works must be understood

works actually issued to the public in one of the countries of the

Union. Consequently,... the exhibition of a work of art, does not

constitute publication in the sense of the aforementioned Acts." In the

Berlin convention of 1908 it was similarly provided (art. 4, par. 4)

that "the exhibition of a work of art and the construction of a work of

architecture do not constitute publication."

{Sidenote: Pan American Union}

In the Pan American Union, the Buenos Aires convention of 1910 covers

artistic works on the same basis as literary works, without special

provisions.

XIV

INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE" AND "UNFAIR COMPETITION"

{Sidenote: Piracy}

The word "piracy," since that gentle craft has disappeared from the high

seas, has come commonly into use to mean free-booting with reference to

literary property. In this sense it is used as early as 1771 by Luckombe

in his history of printing, in which he says: "They ... would suffer by

this act of piracy, since it was likely to prove a very bad edition." It

was especially applied in America more or less jocularly in the days

when there was no legal protection for works by English authors, to the

reprinting chiefly of English novels without authority from or payment

to their authors, when publishers whose imprints were chiefly on such

reprints were commonly known as pirates. This secondary meaning has been

accepted by the dictionary makers, and the use by English law

authorities, and now in the new American code, of the phrases "pirated

works" and "piratical copies," gives the word specific legal _status_.

It is the comprehensive term now in common and legal use to mean the

stealing of an author's work by reprinting it in full or in substantial

part without the authority of the copyright proprietor, and is in fact

an infringement at wholesale or otherwise of the author's exclusive

right. This is of course prohibited by the law to the full extent of its

jurisdiction and is punishable as prescribed in the law.

{Sidenote: Test of piracy}

"The true test of piracy," said Judge Shipman in the U. S. Circuit Court

in 1875, in Banks _v._ McDivitt, is "whether the defendant has in fact

used the plan, arrangements and illustrations as the model of his own

book, with colorable alterations and variations, or whether his work is

the result of his own labor, skill and use of common materials and

common sources." Judge Story said in 1841, in Folsom _v._ Marsh: "If so

much is taken that the value of the original is sensibly diminished, or

the labours of the original author are substantially, to an injurious

extent, appropriated by another, that is sufficient in point of law to

constitute a piracy _pro tanto_. The entirety of the copyright is the

property of the author and it is no defence that another person has

appropriated a part and not the whole of any property."

{Sidenote: Infringement in specific meaning}

Infringement is commonly taken to mean specific invasion of the author's

rights rather than wholesale piracy; and the question of what is

infringement or "literary larceny" is more often a question of the

interpretation of the facts than the construction of the statute. The

legal cases arising under infringement constitute a very large

proportion of copyright litigation, demanding as they do judicial

determination as to the acts complained of in each particular case. It

is therefore impossible in this volume to give citations or references

for the hundreds of cases recorded in the law reports or in the various

works on copyright, but it may be noted that the foot-note citations in

MacGillivray's "Law of copyright" cover a very large number of American

as well as English cases. No treatise on copyright can apply, however,

in advance, the general principles of copyright to the infinite variety

of possible cases; and only generalizations and a few illustrative cases

can here be given.

{Sidenote: Questions of fact and intent}

Infringement is a question of fact rather than of intent. It is not a

valid defense that the infringer is ignorant; nor, on the other hand,

can any one be held for intention to infringe, where the act of

infringement has not been accomplished. The new American code,

nevertheless, recognizes knowledge and intent in certain cases of

punishment or damages by the use of the words "willfully" and

"knowingly." The letter of the law is in general that the infringer must

be held responsible and must make good any damages suffered by the

intent may effect mitigation of punitive damages. The trend of court

decisions and of judicial opinion does not seem to be evident and

consistent in this development; but it may perhaps be said that while

in the legal aspect, the principles of equity have been given freer play

where the statute is not specific and definite. In 1899, in Green _v.

Irish Independent_, the English Court of Appeal held that the

proprietors of a newspaper who had printed an advertisement containing

an illustration which the advertiser had license to use only for

specified purposes, were liable for penalties, though they did not know

that the illustration was copyrighted; and in 1902, in American Press

Assoc. _v._ Daily Story Pub. Co., the U. S. Circuit Court of Appeals

held the defendants liable, though they had innocently copied from a

newspaper reprint which had inadvertently omitted the copyright notice.

But in 1898 Justice Mathew, in Bolton _v_. London Exhibitions, declined

to hold the defendants punishable, because they did not know that the

lithographer from whom they had ordered a poster had infringed the

{Sidenote: "Fair use"}

"Fair use" means quotation from or other use of an author's work within

the evident meaning or judicial construction of the copyright statute,

and is the usual answer of the defendant to a complaint that he has

taken without authority some portion of the author's work or utilized in

some way the result of the author's labors. The borderland between

infringement and "fair use" is peculiarly and necessarily one of

uncertainty, not so much because of ambiguity in the statute as of

difficulty in determining the extent of use within which it is said _non

curat lex_. No statute can be so clear or so complete as to obviate

questions of this kind. In general there must be copying of a material

or substantial part. What is a material or substantial part,

constituting infringement, is a difficult question of fact.

{Sidenote: Principle of infringement}

"Copying is not confined to literal repetition," said Judge Clifford, in

Lawrence _v._ Dana, in the U. S. Circuit Court in 1869, "but includes

also the various modes in which the matter of any publication may be

adopted, imitated, or transferred, with more or less colorable

alterations to disguise the source from which the material was derived;

nor is it necessary that the whole, or even the larger portion of the

work, should be taken in order to constitute an invasion of copyright."

The Chancery Division, through Lord Chief Justice Alverstone, took the

extreme course in Trengrouse _v._ "Sol" Syndicate, in 1901, of holding a

work an infringement, though less than a page was taken from the

plaintiff's football guide.

{Sidenote: Infringement by indirect copying}

Infringement may be by indirect as well as by direct copying. In the

case of Cate _v._ Devon in 1889, in the Chancery Court, the defense that

the copying was not from the original copyright work but from a

newspaper reprint, was rejected. Infringement may be through quite a

different medium from the original; thus a shorthand reproduction of a

lecture on "The dog as the friend of man," published in a text-book of

shorthand, was held in the Chancery case of Nichols _v._ Pitman, in

1884, to be an infringement of the lecture as much as if in ordinary

type.

{Sidenote: Exceptions from infringement}

The doctrine of infringement cannot be invoked to obtain monopoly of any

particular subject, and the authorized biographer of President Garfield

was denied relief in 1889, in Gilmore _v._ Anderson, when he sought to

prevent the publication of a life of Garfield by another writer. Nor

will mere similarity of treatment of the same subject constitute

infringement. A copyright owner cannot prevent another person from

publishing the matter contained in his book, if invented or collected

independently, or from making "fair use" of its contents. Two

map-makers, collecting at first hand the same _data_, would naturally

make the same map, and each would equally be entitled to copyright. In

this respect, copyright law differs from patent law, where a first use

bars others from the same field. It has even been held that the

collected material might be used by a second compiler as a guide in a

second compilation, if subjected to original verification, as in the

case of a street directory. But in the case of rival Boston directories

in 1905, the U. S. Circuit Court of Appeals held, in Sampson & Murdock

Co. _v._ Seaver Radford Co., that a verification by actual canvass from

a list of discrepancies made up from the earlier work was beyond fair

use.

{Sidenote: Infringement by abridgment and compilation}

Abridgments were construed by early English decisions not to be

infringements, and this precedent was followed, reluctantly and often

with protest, in later cases by English and American judges, as set

forth in the chapter on subject-matter. Later copyright provisions,--as

by use of the word "_retranchements_" in the Berne-Berlin conventions,

and the specific authorization in the American code "to make any other

version thereof," and for copyright of an abridgment of a work in the

public domain,--directly or by implication, make abridgment an

infringement and free the courts to take this view. Compilations also

constitute infringement if they extract substantial parts of a copyright

work, beyond the limits of "fair use," or even if they adopt the plan or

arrangement or bodily transfer the material of a copyright compilation

of non-copyright matter.

{Sidenote: Abridged compilations}

A curious complaint of infringement by abridgment was made in Gabriel

_v._ McCabe, in 1896, before Judge Grosscup in the U. S. Circuit Court

in Illinois, where the plaintiff had licensed the use of a copyright

song, "When the roll is called up yonder," in a collection of religious

poetry, "The finest of the wheat, no. 2," published by the defendant,

who included the song also in an abridged edition of this collection and

in a combined edition of this and another collection. Judge Grosscup

held that: "Future editions of a book may contain a composition

published in an earlier edition by license, even though parts of the

earlier edition are omitted.... To hold otherwise would practically

forbid any new editions of books of compilations, for the consent of all

the authors contributing could not, in many instances, be obtained." But

if the collection had been so abridged as to result in the publication

of the song alone as sheet music, it would have been an unfair use under

the license.

{Sidenote: Separation of infringing parts}

The general principles as to quotation beyond "fair use" were well laid

down by Lord Chancellor Eldon, in the early English case of Mawman _v._

Tegg, in 1826: "If the parts which have been copied cannot be separated

from those which are original, without destroying the use and value of

the original matter, he who has made an improper use of that which did

not belong to him must suffer the consequences of so doing. If a man

mixes what belongs to him with what belongs to me, and the mixture be

forbidden by law, he must again separate them, and he must bear all the

mischief and loss which the separation may occasion. If an individual

chooses in any work to mix my literary matter with his own, he must be

restrained from publishing the literary matter which belongs to me; and

if the parts of the work cannot be separated, and if by that means the

injunction, which restrained the publication of my literary matter,

prevents also the publication of his own literary matter, he has only

himself to blame."

{Sidenote: Law digests}

The difficult question of the extent to which a compiler may utilize the

materials of another has come especially to the front in the American

courts with reference to law digests and reports, within recent years.

In 1896, in Mead _v._ West Pub. Co., concerning rival annotated editions

of "Stephen on pleading," then out of copyright, where the defendant's

editor admitted having clipped the text from the complainant's edition

and having obtained some ideas or suggestions from it, Judge Lochren, in

the U. S. Circuit Court in Minnesota, held that there was no

infringement because non-copyright matter could not be protected in a

original even though suggested from the other, and because the few

errors and citations in common were immaterial since there were many new

citations and the work was on the whole the result of original research.

That bodily transfer of citations is beyond "fair use" was emphasized by

Judge Ray in White _v._ Bender, in 1911.

{Sidenote: Proof from common errors}

As to proof from common errors, it had been held in 1895, in the case of

Chicago Dollar Directory Co. _v._ Chicago Directory Co., that the later

work, containing sixty-seven errors found in the other, was evidently an

infringement of the earlier compilation. In Bisel _v._ Welsh, _Re_

Brightly Pennsylvania reports, in 1904, the U. S. Circuit Court held

that repetitions of errors in citations were evidence of infringement by

the author of his own reports published under an earlier contract by the

plaintiffs; and in 1911, in Shepard _v._ Taylor, Judge Hazel held that

common errors were _prima facie_ proof of infringement.

{Sidenote: Infringement in part}

{Sidenote: No infringement of piracies or frauds}

In the important case of West Pub. Co. _v._ Lawyers' Pub. Co., where a

collection of selected cases and a general digest were alleged to be

infringements of the plaintiff's reports and monthly digests, Judge Coxe

in the U. S. Circuit Court enjoined 303 proved "instances of piracy" but

not the remaining portions of the digest, but in 1897 the U. S. Circuit

Court of Appeals, through Judge Lacombe, held that under such

circumstances the burden of proof must be on the unfair user and

broadened the decision by issuing an injunction against the work as a

whole, excepting those parts which were public property. In 1910, in

Park & Pollard _v._ Kellerstrass, Judge Philips enjoined the whole work

because the infringing parts were not separable. In 1903, in Thompson

Co. _v._ American Law Book Co., where the editor of the defendant's law

encyclopaedia had made a list of cases cited in complainant's work, which

included material "pirated" by the complainant from copyright works, the

Circuit Court of Appeals, reversing the lower court, held through Judge

Coxe that there was no infringement, because the only use made of the

list was to guide the defendant to the reports and because the

complainant had no standing in equity. "If the defendant was guilty of

piracy, so was the complainant; and equity will not protect a pirate

from infringements of his piratical work." To like effect in Slingsby

_v._ Bradford Co., in 1905, Justice Warrington, in the Chancery

Division, held that the plaintiff could not recover against an evident

copying because his own catalogue was fraudulent in advertising as

patented articles not so protected, and a fraud will not be protected.

In the later case of West Pub. Co. _v_. Thompson Co., where the

publishers of the original reports and digests sought to restrain the

Thompson encyclopaedias, the Circuit Court of Appeals held that while a

compiler may use a copyright digest by making lists from which to run

down cases, which is "fair use," extensive copying or paraphrasing of

the language of the digest, whether to save literary work or mechanical

labor, constitutes an infringement. The case was sent back to the lower

court for rehearing and assessment of damages and was settled in 1911 by

an agreement involving transfer of the encyclopaedia to the plaintiff.

Reference to a copyright work giving pagination is not an infringement,

as was decided in 1909, in Banks Law Pub. Co. _v._ Lawyers Co-operative

Pub. Co., in the U. S. Circuit Court of Appeals.

{Sidenote: Quotation}

Whether simple quotation constitutes an infringement or is "fair use,"

depends upon extent and in some respects upon purpose. In 1892 Justice

North, in the English Court of Chancery, in Walter _v._ Steinkopff, held

that the use by the _St. James Gazette_ of two fifths of an article by

Kipling, copyrighted by the _Times_, was beyond "fair use" of

quotations, notwithstanding the newspaper custom of copying from one

another. On the other hand, quotations in a review of a book made to

reasonable extent for the purposes of criticism, have usually been

considered "fair use," provided they do not go to the extent of a

description or abridgment which would be measurably a substitute for the

book.

{Sidenote: Private use}

The multiplication of copies by handwriting or other process for private

use, as among the members of an orchestra or in a business office, has

been held an infringement in English decisions, though prohibition of

the making of a single copy for personal use would be an extreme

application of this doctrine, and such use is specifically permitted in

the new English code.

{Sidenote: The doctrine of "unfair competition"}

Beyond the purview of copyright law, there is a means of legal remedy

for the copyright proprietor which can be enforced by state as well as

by federal courts, resting either upon statutes outside the copyright

law, or on the general principles of equity. This is the application of

the doctrine of "unfair competition" especially in cases involving

"fraud" or fraudulent representation, direct or implied, leading the

purchaser to buy something other than what he supposes he is buying.

Thus if a publisher prints and binds a book with a title and in a style

that leads a purchaser to suppose that it is another book which he is

buying, the publisher of the other book has the right to obtain

equitable relief by an injunction from the transgressor on the ground of

unfair competition without any reference to copyright law, although this

doctrine is more applied in the case of patents, trade-marks and

copyrights than perhaps any other field.

{Sidenote: The doctrine of deceptive intent}

There is also evident a growing tendency on the part of the courts to

protect the public from possible deception especially if done with

fraudulent intent, where some distinctive name or symbol or form

associated with some line of product is used for another line of product

of different origin and character, though there may be here no direct

competition; but this comparatively new doctrine is more likely to be

used in regard to trade-mark articles than in respect to literary and

like property. It might, however, apply in a case where a well-known

publishing house had published, for instance, a popular series of school

books as Smith's Arithmetical Readers and another firm containing the

same name had started to publish a Smith's Algebraic Readers--but the

application would be extremely doubtful.

{Sidenote: The "Chatterbox" cases}

In the Chatterbox cases, 1884-1887, previously referred to, the final

decision of Judge Shipman emphasized the view that the use of the title

"Chatterbox" on a similar publication was misleading to the public, thus

bringing both trade-mark law and common law protection to the rescue

against unfair competition.

{Sidenote: Encyclopaedia Britannica cases}

In the series of Encyclopaedia Britannica cases, 1890-1904, the English

publishers Black or their American representatives Scribner sought to

protect in this country the English edition, or an American authorized

edition, under the copyright law previous to 1891, copyrighted articles

by Americans being included, and under common law because of the alleged

fraudulent misuse of the name to mislead the public. In 1893, in Black

_v._ Allen, Judge Townsend held that the use of copyrighted material in

a non-copyright work did not vitiate the copyright, that the American

author was entitled to secure and protect copyright even though the

right to use was assigned to an English house which could not directly

secure copyright, and that the fact of discrepancy in the title of the

copyrighted articles as registered for copyright on separate publication

and deposit and in the cyclopaedia, did not endanger the copyright. In

1904, in Encyclopaedia Britannica Co. _v._ Tribune Association, Judge

Lacombe in the U. S. Circuit Court enjoined condensations of the

copyrighted American articles. But in Black _v._ Ehrich and other cases,

the complainants were not successful in obtaining an injunction against

the use of the title Encyclopaedia Britannica on reprints of

non-copyright material which did not mislead the public.

{Sidenote: Webster Dictionary cases}

In the Webster Dictionary cases in 1890-1909, a long litigation between

the Merriams, as authorized publishers of Webster, and Ogilvie and other

defendants, the courts held that the use of the name Webster or the

title Webster's Dictionary could not be restrained when used in

connection with a reprint of the original Webster Dictionary, then out

of copyright, or otherwise in a manner not likely to mislead the public;

but injunctions were granted and sustained against the use of these

names on dictionaries issued in form so like the Merriam editions as to

deceive the public, or in connection with misleading advertisements or

circulars.

{Sidenote: "Old sleuth" cases}

In 1888-1890 George Munro, publisher of the "Old sleuth" detective

series, sought in actions against several defendants to protect the use

of the name "Sleuth" and was upheld in the N. Y. Supreme Court in

separate decisions by Judges Andrews, O'Brien, and Patterson, while in

one of the cases Judge Ingraham held that "sleuth" was a dictionary word

and could not be protected; in 1889 the N. Y. Court of Appeals through

Chief Judge Parker decided that the name "Sleuth" was protectable, and

in 1890 Judge Macomber of the N. Y. Supreme Court held that "Sleuth" was

properly a subject of trade-mark. But in 1890 also, Judge Shipman in the

U. S. District Court dismissed the complaint in another Munro case, as

to an illustration picturing "Old Sleuth," on the ground that though of

the same subject it was not of the same character. These cases

illustrate the difficulty of decisions in this borderland of equity.

{Sidenote: Other title decisions}

In 1894 Judge Green, in the U. S. Circuit Court in New Jersey, in Social

title "Social register" as descriptive of a social directory covering

Orange, N. J., and enjoined the use of "Howard's Social register" as

unfair competition. In 1887 the Harper house, as publishers of the

_Franklin Square Library_, obtained from the U. S. Circuit Court,

through Judge Waite, an injunction against the Franklin Square Library

Company for violation of their trade-mark rights in the name.

{Sidenote: Rebound copies}

Where the American Book Co. brought suit against Doan & Hanson, who had

restored and rebound used copies of school books, the U. S. Circuit

Court of Appeals held in 1901 that there was no violation of law, but

required notice that the books were second-hand copies by conspicuous

stamp on the cover. In 1891 the Pennsylvania Supreme Court, in Dodd _v._

Smith, declined to grant Dodd, Mead & Co. an injunction against

rebinders who had purchased from them sheets of a fifty-cent

paper-covered edition of a novel by E. P. Roe and bound these in cloth

to sell at sixty cents in competition with the plaintiff's $1.50 cloth

edition.

{Sidenote: The Kipling case}

In 1899 G. P. Putnam's Sons purchased from Kipling's authorized

publishers sheets of twelve volumes, added three volumes of

non-copyright or otherwise authorized material and published the fifteen

volumes, "Brushwood edition," of Kipling's works, with the design of an

elephant's head on the binding. Kipling sought an injunction for

infringement of copyright, use of trade-mark and unfair competition with

the "Outward bound edition" of his works, which also bore an elephant's

head. In 1903 the U. S. Circuit Court of Appeals, through Judge Coxe,

affirmed a decision holding as "a well-recognized principle of law" that

"the defendants, having purchased unbound copyrighted volumes, were at

liberty, so far as the copyright statute is concerned, to bind and

resell them"; that the elephant's head, not being a registered

trade-mark, could not be protected as a trade-mark; and that there was

no similarity of editions constituting unfair competition. But in 1907,

in Dutton _v._ Cupples & Leon, the plaintiffs obtained damages for a

series of books closely imitating the get-up of their "Gem" or "Dainty"

series. Passing off, however, cannot be made ground of action when

material protectable by copyright has not been copyrighted, as was held

in 1908, in Bamforth _v._ Douglas Post Card Co., by Judge McPherson in

the U. S. Circuit Court.

{Sidenote: Burlesqued title}

The suit to enjoin the use of a reversed or burlesque title, when the

_Boston Herald_ printed, under the title of "Letters of a son to his

self-made father," a skit on Lorimer's "Letters of a self-made merchant

to his son," was denied by Judge Morton in the Massachusetts Supreme

Court in 1903 as involving no deception.

{Sidenote: The Drummond case}

In 1894 Henry Drummond, a British subject, obtained from Judge Dallas,

in the U. S. Circuit Court, an injunction restraining Henry Altemus from

publishing what purported to be exact reports of twelve lectures, of

which eight only had been imperfectly reported in the _British Weekly_,

on the ground that the author had a common law right to restrain the

publication "of any literary matter as the plaintiff's, which was not

actually his creation, and to prevent fraud."

{Sidenote: The new British code}

The new British measure comprehensively defines infringement as the

doing without consent of the owner of the copyright of "anything the

sole right to do which is by this act conferred on the owner of the

research, criticism, review or newspaper summary; (2) use by an artist

of sketches, etc., made for a work of which he has sold the copyright,

provided he does not repeat or imitate that work; (3) graphic

reproduction of objects, or photographing of paintings, etc., in a

public place; (4) limited extracts for use in school books; (5) report

of lectures unless prohibited by placard; (6) reading or recitation of

reasonable extracts.

REMEDIES AND PROCEDURE

{Sidenote: Protection and procedure}

It was for the protection of copyrights that the statute of Anne was

passed and that statutory law thus began to replace English common

law--a gain to authors sadly offset by its losses. But it was

undoubtedly true that without statutory provision the proprietor of

literary and similar property could not obtain the protection necessary

for the enforcement of his rights. The new American code is

comprehensive, detailed and specific in its legal provisions for

protection and procedure, and in respect to punishment far beyond any

{Sidenote: Injunction}

The first protection given by the statute is the injunction usual in

equity proceedings, following the precedent of early legislation.

{Sidenote: Damages}

Under previous American law, damages were levied primarily on infringing

copies found in possession of the infringer or his agents, with the

unfortunate result that when an infringer was successful in selling his

edition, few, if any, copies were found on which to levy damages. The

new code thoroughly corrects this defect by providing for specified

damages on infringing copies "made or sold by or found in the possession

of the infringer or his agents or employees." The plaintiff is entitled

to damages and all profits and is required only to prove sales, while

the defendant is required to prove the elements of cost. The

damages--assessed as such and not as penalties so as to free copyright

litigation from the restrictions of penal proceedings--are stated as one

dollar for each infringing copy, except copies of a painting, statue or

sculpture on which they are ten dollars per copy; fifty dollars for each

infringing delivery of an oral work; one hundred dollars for the first

and fifty dollars for each subsequent infringing performance of a

dramatic, dramatico-musical, choral or orchestral work; and ten dollars

for each infringing performance of any other musical work. These damages

shall not be less than $250 or more than $5000 in any one case, with the

exception that for a newspaper reproduction of a photograph the minimum

shall be fifty dollars and the maximum two hundred dollars, a concession

insisted upon by newspaper proprietors.

{Sidenote: One suit sufficing}

Injunction, damages and profits, and delivery of infringing copies or

means of production, are covered in the single suit to protect the

{Sidenote: Deposit of infringing articles}

During the pendency of an action the defendant may be required to

deposit all articles alleged to infringe copyright, making oath that he

has deposited all such, under regulations for his protection prescribed,

as the law directs, by the Supreme Court, which regulations are given in

full in the appendix of this volume; and when such articles are adjudged

to be infringements, he must deliver up for destruction not only such

infringing copies or devices, but also all plates, molds, matrices or

other means for making such infringing copies as the court may order,

making oath that he has delivered up all such.

The text covering these provisions, with the exception of subsection

(e), referring to mechanical musical reproductions, given in the chapter

on that subject, is as follows:

"(Sec. 25.) That if any person shall infringe the copyright in any work

protected under the copyright laws of the United States such person

shall be liable:

{Sidenote: Remedies specified}

"(a) To an injunction restraining such infringement;

"(b) To pay to the copyright proprietor such damages as the copyright

proprietor may have suffered due to the infringement, as well as all the

profits which the infringer shall have made from such infringement, and

in proving profits the plaintiff shall be required to prove sales only

and the defendant shall be required to prove every element of cost which

he claims, or in lieu of actual damages and profits such damages as to

the court shall appear to be just, and in assessing such damages the

court may, in its discretion, allow the amounts as hereinafter stated,

but in the case of a newspaper reproduction of a copyrighted photograph

such damages shall not exceed the sum of two hundred dollars nor be less

than the sum of fifty dollars, and such damages shall in no other case

exceed the sum of five thousand dollars nor be less than the sum of two

hundred and fifty dollars, and shall not be regarded as a penalty:

"First. In the case of a painting, statue, or sculpture, ten dollars for

every infringing copy made or sold by or found in the possession of the

infringer or his agents or employees;

"Second. In the case of any work enumerated in section five of this Act,

except a painting, statue, or sculpture, one dollar for every infringing

copy made or sold by or found in the possession of the infringer or his

agents or employees;

"Third. In the case of a lecture, sermon, or address, fifty dollars for

every infringing delivery;

"Fourth. In the case of dramatic or dramatico-musical or a choral or

orchestral composition, one hundred dollars for the first and fifty

dollars for every subsequent infringing performance; in the case of

other musical compositions, ten dollars for every infringing

performance;

{Sidenote: Impounding}

"(c) To deliver up on oath, to be impounded during the pendency of the

action, upon such terms and conditions as the court may prescribe, all

articles alleged to infringe a copyright;

"(d) To deliver up on oath for destruction all the infringing copies or

devices, as well as all plates, molds, matrices, or other means for

making such infringing copies as the court may order;

{Sidenote: Supreme Court rules}

"Rules and regulations for practice and procedure under this section

shall be prescribed by the Supreme Court of the United States," for

which see appendix.

{Sidenote: Court jurisdiction}

The Circuit Court, or District or other courts having circuit

jurisdiction, of the United States, have original jurisdiction "of all

suits at law or in equity arising under the patent or copyright laws of

the United States" with appeal or writ of error to the Supreme Court of

the United States. Copyright cases are brought in the first instance

before a single judge sitting in Circuit Court or District Court, and

thence are appealed to the Circuit Court of Appeals consisting of three

or more circuit judges, and thence again to the United States Supreme

Court, the final authority. These federal courts have sole jurisdiction

under the copyright law as such; but copyright cases are often

adjudicated in State courts on questions arising under the law of

contracts or other statute or common law, regard being always given to

the decisions of the federal courts as to copyright questions proper

which may be involved. In other words, the State courts do not pass upon

Judge Putnam in the U. S. Circuit Court in Massachusetts remanded the

case back to the State courts because the question was not under the

property. In this case the author of a play "A black sheep," containing

a song "Sweet Daisy Stokes," licensed the defendant to print the song.

The defendant copyrighted the song and the plaintiff sued to compel him

to assign his copyright. The case illustrates the respective

jurisdictions of federal and State courts in copyright matters.

{Sidenote: Limitation}

The United States courts have authority to enter the decrees necessary

to enforce the remedies provided by the law. Important provisions of the

new code provide that civil action in copyright cases may be brought "in

the district of which the defendant or his agent is an inhabitant or in

which he may be found"--thus preventing avoidance by the defendant

possible under earlier law; and also that any injunction granted in any

one district may be operative throughout the United States--a provision

adopted into the law from recent legislation intended to prevent the

evasion of injunctions, particularly by "fly by night" dramatic

companies passing from one state or court jurisdiction into another, but

usefully applicable also throughout the whole range of copyright

infringements. Criminal proceedings under the copyright act may not be

brought after three years from the commission of the offense.

Under the former laws the District courts also had certain--or

uncertain--jurisdiction. The distinction between the District courts and

the Circuit courts of the United States, both of which are courts of

first instance, has been so complicated and uncertain as to be

practically impossible of statement--a situation which has led to a

measure for the abolition of the distinction and the provision of a

single court in each federal district having original jurisdiction in

the first instance, from which appeal will go to the Circuit Court of

Appeals and thence to the U. S. Supreme Court, or in certain cases

direct to the Supreme Court.

{Sidenote: Text of procedure provisions}

The text of these provisions is as follows:

"(Sec. 26.) That any court given jurisdiction under section thirty-four

of this Act may proceed in any action, suit, or proceeding instituted

for violation of any provision hereof to enter a judgment or decree

enforcing the remedies herein provided.

{Sidenote: Proceedings united in one action}

"(Sec. 27.) That the proceedings for an injunction, damages, and

profits, and those for the seizure of infringing copies, plates, molds,

matrices, and so forth, aforementioned, may be united in one action."

{Sidenote: Jurisdiction in copyright cases}

"(Sec. 34.) That all actions, suits, or proceedings arising under the

the circuit courts of the United States, the district court of any

Territory, the supreme court of the District of Columbia, the district

courts of Alaska, Hawaii, and Porto Rico, and the courts of first

instance of the Philippine Islands.

"(Sec. 35.) That civil actions, suits, or proceedings arising under this

Act may be instituted in the district of which the defendant or his

agent is an inhabitant, or in which he may be found.

{Sidenote: Injunction provisions}

"(Sec. 36.) That any such court or judge thereof shall have power, upon

bill in equity filed by any party aggrieved, to grant injunctions to

prevent and restrain the violation of any right secured by said laws,

according to the course and principles of courts of equity, on such

terms as said court or judge may deem reasonable. Any injunction that

may be granted restraining and enjoining the doing of anything forbidden

by this Act may be served on the parties against whom such injunction

may be granted anywhere in the United States, and shall be operative

throughout the United States and be enforceable by proceedings in

contempt or otherwise by any other court or judge possessing

jurisdiction of the defendants.

"(Sec. 37.) That the clerk of the court, or judge granting the

injunction, shall, when required so to do by the court hearing the

application to enforce said injunction, transmit without delay to said

court a certified copy of all the papers in said cause that are on file

in his office.

{Sidenote: Appeal}

"(Sec. 38.) That the orders, judgments, or decrees of any court

mentioned in section thirty-four of this Act arising under the copyright

laws of the United States may be reviewed on appeal or writ of error in

the manner and to the extent now provided by law for the review of cases

determined in said courts, respectively.

{Sidenote: No criminal proceedings after three years}

"(Sec. 39.) That no criminal proceeding shall be maintained under the

provisions of this Act unless the same is commenced within three years

after the cause of action arose."

{Sidenote: Strict compliance requisite}

The copyright statutes are construed strictly, by the letter of the law,

in respect to procedure as well as to other features. This is especially

the case in respect to forfeiture and penalties, as where, in Falk _v._

Heffron, in 1893, 2400 copies of a copyright portrait of Lillian Russell

had been lithographed, twenty-one on a sheet. Judge Wheeler in the U. S.

Circuit Court in New York held with the jury that only one dollar per

sheet could be recovered as penalty, because the law specified "sheets."

In McDonald _v._ Hearst, in 1899, in the U. S. Circuit Court in

California, Judge DeHaven held that the proprietor of the San Francisco

_Examiner_ could not be held liable for copyright penalties because an

employer could not be held to penal responsibility for the act of his

agent. In a suit to obtain damages based on forfeiture, in Wheeler _v._

Cobbey, in 1895, Judge Shiras in the U. S. Circuit Court in Nebraska

sustained a demurrer on the ground that the damages asked for depended

on forfeiture and could not be obtained unless the actual forfeiture was

had within the statutory limit of two years. In Morrison _v_. Pettibone,

in 1897, in the U. S. Circuit Court in Illinois, Judge Seaman held that

certain sheets, seized during the process of lithographing, when only

one color had been printed, were not exact copies and therefore could

not be forfeited. In Bennett _v._ Boston _Traveler_ Co., in 1900, the

Circuit Court of Appeals, through Judge Colt, refused relief because the

plaintiff had alleged infringement of a cartoon published in the New

York _Herald_, which was not specifically copyrighted, instead of

alleging infringement of the copyrighted newspaper of which it was a

part. An extreme case was that of Child _v._ N. Y. _Times_ Co., in 1901,

where the plaintiff had purchased infringing copies from the defendant,

in which case Judge Hazel in the U. S. Circuit Court in New York held

that as these were not literally "found in possession" of defendant, a

penalty could not be collected. Several of these cases illustrate

escapes from justice which will not be possible under the code of 1909,

which uses broader phraseology. In Walker _v._ Globe Newspaper Co., in

1908, where no copies of a pirated map were found in possession of the

defendants, the U. S. Supreme Court held that outside of statutory

remedies no suit for damages could be maintained.

{Sidenote: Damage not penalty}

On the other hand, in the case of Brady _v._ Daly, which came before the

U. S. Supreme Court in 1899, the defendants, on a question of

jurisdiction, raised the issue that the old law provided for a penalty

and not for damages, in denying which Justice Peckham held that: "The

statute in using the word 'damages' did not mean a forfeiture or

penalty, as it is difficult to prove the exact amount which the

proprietor of a play may suffer by reason of an infringement. It is

probable that Congress intended to provide a remedy so that the

proprietor could recover a certain amount of damages without proof of

what his actual loss had been. In the face of the difficulty of

determining the amount of damages, a minimum sum is provided in any

case, with the possibility of recovering a larger amount on proof of

greater damage. The idea of punishment is not so much suggested as the

desire to provide for compensation to the proprietor." This rule was

applied by Judge Lacombe in Patterson _v_. Ogilvie, in 1902.

{Sidenote: Other procedure decisions}

In the case of Falk _v._ Curtis Pub. Co., which came before the U. S.

Circuit Court in Pennsylvania twice in 1900, some important decisions or

indications as to copyright procedure were given. The defense that under

the copyright act the words "any person" did not include a corporation

was overruled by Judge Dallas on the ground that the general statute

specifically construed the word "person" to extend to partnerships and

corporations. In this case an action to recover penalties and an action

to replevin copies in possession were started independently and

simultaneously, and the Circuit Court of Appeals through Judge

Buffington affirmed the decision that as the penalties under the old act

were restricted to copies "found in possession," the suit for penalties

was premature. In the later case of Rinehart _v._ Smith, also in the

Pennsylvania circuit, it was pointed out that an action for replevin was

not the proper form of suit because in such actions bonds might be given

and the forfeiture of copies thus be barred; and in Hegeman _v._

Springer, the Circuit Court in New York held, in 1901, that a replevin

suit, involving prior demand, was not necessary and that the copyright

statute itself gave authority for an action for seizure without previous

demand, as would be necessary in replevin proceedings. It was held,

however, in the Illinois circuit in an earlier case, that a suit of

replevin will lie to enforce forfeiture under the copyright act. Several

of these perplexities, however, are removed by the code of 1909, which

expressly (sec. 27) authorizes the bringing together of all the remedies

in one action.

{Sidenote: Preventive action}

That there can be no infringement of copyright by acts committed before

the copyright was obtained, was decided in 1900 in the U. S. Circuit

Court in the case of Maloney _v._ Foote, where the two parties were

jointly engaged in preparing directories, and the plaintiff obtained the

material, the question being of contract and not of copyright. On the

other hand, as far as practicable, "it is the policy of the law to

arrest the pirate before he actually makes off with the plunder," said

Judge Coxe in the U. S. Circuit Court of Appeals, in Gannet _v._ Rupert,

in 1904.

{Sidenote: Party in suit}

In 1903, in Champney _v._ Haag, it was held in the U. S. Circuit Court

in Pennsylvania, that though a copy of a photograph of a copyright

painting was an infringement, it was not the owner of the original

contrary to the English ruling case of Lucas _v._ Williams, and is

probably not good law.

{Sidenote: Suit for injury to reputation}

A curious case arose in England in 1892 as to the rights of an author

after publication and transfer of copyright, in Lee _v._ Gibbings, where

the plaintiff had prepared for the defendant, a publisher, at an agreed

price, an edition with introduction of Lord Herbert's autobiography,

which the defendant reissued in a condensed edition without the

introduction and other matter by the author, though retaining his name.

The author sued to restrain the condensation as an injury to his

reputation, but Justice Kekewich in the Chancery Division held that this

should be a suit for libel and not under copyright, and declined to

enjoin the defendant before the question whether this was actually a

libel was settled.

{Sidenote: Damages in willful case}

In a case of evident bad faith in wholesale copying, the U. S. Circuit

Court in Hartford Printing Co. _v._ Hartford Directory Co. awarded as

damages the gross receipts less estimated cost.

{Sidenote: Penal provisions}

The provisions for collecting damages and profits are supplemented in

case of infringement, willfully and for profit, by penal provisions

which make the offense a misdemeanor punishable by imprisonment not

exceeding one year or fine not less than $100 or more than $1000, or

both, in the discretion of the court, according to the following

provision (sec. 28):

{Sidenote: Penalty for willful infringement}

"That any person who willfully and for profit shall infringe any

or abet such infringement, shall be deemed guilty of a misdemeanor, and

upon conviction thereof shall be punished by imprisonment for not

exceeding one year or by a fine of not less than one hundred dollars nor

more than one thousand dollars, or both, in the discretion of the

court."

This provision (sec. 28) includes however a proviso exempting from

prevention or punishment the performance of certain musical works for

charitable or educational purposes and not for profit, which proviso is

given in full in the chapter on dramatic and musical copyright.

{Sidenote: Penalty for false notice of copyright}

Provision is also made in the new statute for the punishment by fine,

but not by imprisonment, of any person who with fraudulent intent

affixes a copyright notice or its equivalent on an uncopyrighted work,

or removes or alters the copyright notice in a copyrighted work, the

fine being not less than $100 nor more than $1000; and of any person who

shall knowingly issue, sell or import any article bearing notice of

United States copyright which has not been copyrighted in this country,

the fine in this case being $100, according to these provisions:

"(Sec. 29.) That any person who, with fraudulent intent, shall insert or

impress any notice of copyright required by this Act, or words of the

same purport, in or upon any uncopyrighted article, or with fraudulent

intent shall remove or alter the copyright notice upon any article duly

copyrighted shall be guilty of a misdemeanor, punishable by a fine of

not less than one hundred dollars and not more than one thousand

dollars. Any person who shall knowingly issue or sell any article

bearing a notice of United States copyright which has not been

copyrighted in this country, or who shall knowingly import any article

bearing such notice or words of the same purport, which has not been

copyrighted in this country, shall be liable to a fine of one hundred

dollars."

Further provisions as to importation are given in the chapter on that

subject.

{Sidenote: Allowance of costs}

In addition to injunction, damages and profits, delivery of copies,

etc., the courts may allow costs inclusive of attorney's fees as

provided:

"(Sec. 40.) That in all actions, suits, or proceedings under this Act,

except when brought by or against the United States or any officer

thereof, full costs shall be allowed, and the court may award to the

prevailing party a reasonable attorney's fee as part of the costs."

It seems impracticable and undesirable to attempt in this chapter a

statement of the procedure under former copyright laws in this country,

or under the legal methods in vogue in other countries, for which the

legal authorities on local procedure and practice should be consulted.

{Sidenote: The new British code}

The new British measure provides the usual civil remedies of injunction,

damages, account and costs in the discretion of the court. The author,

or if no author the publisher whose name is indicated on the work, is

_prima facie_ recognized as owner unless the contrary is proved.

Infringing copies or plates become the property of the copyright owner.

If the infringer proves ignorance, only an injunction will hold. In

architectural works, after construction has been commenced, damages and

not an injunction are provided for. Actions must be commenced within

three years. Summary conviction is provided for in the case of any

person knowingly and for profit or trade making, offering, distributing,

exhibiting or importing infringing copies or making or having in

possession infringing plates with penalty of a fine not exceeding fifty

pounds, or in case of a second offense, imprisonment not exceeding two

months, as also destruction or delivery up to owner of the copyright.

The summary provisions of the musical copyright acts of 1902 and 1906

remain unrepealed.

Under previous law there had been two notable cases of criminal

punishment for conspiracy. In 1906, _Re_ Willets against a combination

among cheap music publishers, where the Common Serjeant sentenced the

vendors to nine months' imprisonment, and in 1910, _Re_ Bokenham, where

pirates who had conspired to print surreptitiously obtained copies of

Oscar Wilde's poem "De Profundis," were also sentenced to six months and

lesser periods.

XVI

IMPORTATION OF COPYRIGHTED WORKS

{Sidenote: Copyright and importation}

The right to import a copyrighted book and, conversely, the right to

exclude importation are rights incident to the general "exclusive right"

of an author or copyright proprietor. This is recognized, in terms or

inferentially, in the copyright law of most countries; and the American

the preceding American law of 1891, in specifically permitting the

importation of copyrighted books in stated cases, without the consent or

authority of the copyright proprietor.

{Sidenote: Fundamental right of exclusion}

As Senator O. H. Platt in the copyright debate of 1891 said: "The

fundamental idea of a copyright is exclusive right to vend, and the

prohibition against importation from a foreign nation is necessary to

the enjoyment of that right. The privilege of controlling the market is

indeed essential." The copyright laws of foreign countries, and our own

When an author cannot assure to an American publisher the American

market he cannot get from that publisher the price he would otherwise

secure. In the "international copyright amendment" of 1891, Congress

accompanied the manufacturing clause, which prohibited the importation

of foreign copies even with the consent of the author, by a proviso

permitting certain importations even without the consent of the

author--on the homoeopathic principle of off-setting one restriction

upon authors' rights by another restriction upon authors' rights.

{Sidenote: General prohibitions}

{Sidenote: Exceptions permitted}

In general the law prohibits absolutely the importation of "piratical

copies" or of works bearing a false notice of United States copyright;

it also prohibits, even though with consent of the author and the

the manufacturing clause, of any copies not manufactured in this

country--but this prohibition does not apply to books in raised

characters for use of the blind; to foreign-made periodicals containing

authorized copyright matter; to authorized copies of a work in a foreign

language of which only an English translation has been copyrighted here;

or to authorized copies published abroad when imported under specified

exceptional circumstances. These exceptions permit the importation of

authorized copies for individual use and not for sale, not more than one

copy at a time (excepting a foreign reprint of a book by an American

author); or by or for the United States; or by or for stated educational

institutions, including libraries, not more than one copy at one time;

or when parts of collections or libraries purchased and imported _en

bloc_, or of personal baggage. Books imported under these exceptions

cannot be adduced in defense of infringements, as the law specifically

provides, _e.g._, as when such a book contains no proper United States

like other contraband importations under regulations of the United

States Treasury, but it is provided that importations through the mails

or otherwise may be returned to the country from which the importation

is made on petition to the Secretary of the Treasury when there is no

evidence of negligence or fraud. The Secretary of the Treasury and the

Postmaster-General are jointly required to make regulations against

unlawful importation through the mails.

These provisions, it may be noted, are a singular mixture, almost

without precedent, of acceptance and denial of the "exclusive right" of

the author or copyright proprietor.

{Sidenote: Text provisions}

In respect to the importation of books in relation with copyright, the

provisions of the American code as to prohibition and limited permission

are specific and detailed, as follows:

{Sidenote: Prohibition of piratical copies}

"(Sec. 30.) That the importation into the United States of any article

bearing a false notice of copyright when there is no existing copyright

thereon in the United States, or of any piratical copies of any work

copyrighted in the United States, is prohibited.

{Sidenote: Permitted importations}

"(Sec. 31.) That during the existence of the American copyright in any

book the importation into the United States of any piratical copies

thereof or of any copies thereof (although authorized by the author or

proprietor) which have not been produced in accordance with the

manufacturing provisions specified in section fifteen of this Act, or

any plates of the same not made from type set within the limits of the

United States, or any copies thereof produced by lithographic or

photo-engraving process not performed within the limits of the United

States, in accordance with the provisions of section fifteen of this

Act, shall be, and is hereby, prohibited: _Provided, however_, That,

except as regards piratical copies, such prohibition shall not apply:

"(a) To works in raised characters for the use of the blind;

"(b) To a foreign newspaper or magazine, although containing matter

copyrighted in the United States printed or reprinted by authority of

the copyright proprietor, unless such newspaper or magazine contains

also copyright matter printed or reprinted without such authorization;

"(c) To the authorized edition of a book in a foreign language or

languages of which only a translation into English has been copyrighted

in this country;

"(d) To any book published abroad with the authorization of the author

or copyright proprietor when imported under the circumstances stated in

one of the four subdivisions following, that is to say:

"First. When imported, not more than one copy at one time, for

individual use and not for sale; but such privilege of importation shall

not extend to a foreign reprint of a book by an American author

copyrighted in the United States;

"Second. When imported by the authority or for the use of the United

States;

{Sidenote: Library importations}

"Third. When imported, for use and not for sale, not more than one copy

of any such book in any one invoice, in good faith, by or for any

society or institution incorporated for educational, literary,

philosophical, scientific, or religious purposes, or for the

encouragement of the fine arts, or for any college, academy, school, or

seminary of learning, or for any State, school, college, university, or

free public library in the United States;

"Fourth. When such books form parts of libraries or collections

purchased en bloc for the use of societies, institutions, or libraries

designated in the foregoing paragraph, or form parts of the libraries or

personal baggage belonging to persons or families arriving from foreign

countries and are not intended for sale: _Provided_, That copies

imported as above may not lawfully be used in any way to violate the

rights of the proprietor of the American copyright or annul or limit the

deemed an infringement of copyright.

{Sidenote: Seizure}

{Sidenote: Return of importations}

"(Sec. 32.) That any and all articles prohibited importation by this Act

which are brought into the United States from any foreign country

(except in the mails) shall be seized and forfeited by like proceedings

as those provided by law for the seizure and condemnation of property

imported into the United States in violation of the customs revenue

laws. Such articles when forfeited shall be destroyed in such manner as

the Secretary of the Treasury or the court, as the case may be, shall

direct: _Provided, however_, That all copies of authorized editions of

provisions of this Act may be exported and returned to the country of

export whenever it is shown to the satisfaction of the Secretary of the

Treasury, in a written application, that such importation does not

involve willful negligence or fraud.

{Sidenote: Rules against unlawful importation}

"(Sec. 33.) That the Secretary of the Treasury and the

Postmaster-General are hereby empowered and required to make and enforce

such joint rules and regulations as shall prevent the importation into

the United States in the mails of articles prohibited importation by

this Act, and may require notice to be given to the Treasury Department

or Post Office Department, as the case may be, by copyright proprietors

or injured parties, of the actual or contemplated importation of

articles prohibited importation by this Act, and which infringe the

rights of such copyright proprietors or injured parties."

Customs regulations as to importation of copyright articles and joint

customs and postal regulations as to such importation through the mails,

were issued under the law of 1909 under date of July 17, 1911, and are

given in the appendix. As the copyright law forbids importation of

the copyright proprietor, the customs regulations provide that copies

imported with the copyright proprietor's assent shall be seized and

destroyed by the government, while copies imported without the copyright

proprietor's consent, being forfeited under the law to such proprietor,

must be held by the customs authorities pending suit for forfeiture by

the copyright owner or his abandonment of his right to such copies.

Duties collected on books thus unlawfully imported are not refunded.

{Sidenote: Supersedure of previous provisions}

In relation especially to questions of importation, and in general, it

is of first importance to note that the present code superseded by

repeal, from July 1, 1909, all conflicting provisions, which

practically means all previous copyright legislation, and that except as

to infringement cases actionable at that date, the present code is the

only copyright law.

The provision to this effect is (sec. 63): "That all laws or parts of

laws in conflict with the provisions of this Act are hereby repealed,

but nothing in this Act shall affect causes of action for infringement

of copyright heretofore committed now pending in courts of the United

States, or which may hereafter be instituted; but such causes shall be

prosecuted to a conclusion in the manner heretofore provided by law."

{Sidenote: Manufacturing clause affects earlier copyrights}

This principle as construed by the Treasury Department (Treas. dec. no.

30316) especially affects copies whose _status_ has been changed by the

new form of the manufacturing proviso (sec. 15). A modification adds the

condition that books must be printed from plates made from type set

within the United States and printed and bound in this country. The

Treasury Department has held in the case of an American edition of the

"Key of Heaven" copyrighted under the law of 1891, by Benziger Brothers,

of which sheets were sent abroad for binding, that the edition as bound

abroad cannot be re-imported into the United States, although the sheets

were manufactured here under the provisions of the law of 1891, previous

to July 1, 1909. These books were accordingly denied importation and had

to be returned to the country whence they were exported as bound. The

opinion of Attorney-General Wickersham of November 17, 1909, on which

the Treasury ruling was based, says:

"This language [of sec. 31] clearly embraces every American copyright in

a book, regardless of whether that copyright was obtained under the

the copyright act of 1909. If the statute were otherwise, it would have

produced the anomalous condition that books copyrighted prior to March

3, 1891, would not be prohibited from importation by any manufacturing

provision; that books copyrighted after March 3, 1891, and prior to July

1, 1909, the date upon which the act of March 4, 1909, became effective,

would be prohibited unless printed from type set in the United States or

from plates made from type set in the United States, while books

copyrighted after July 1, 1909, would be prohibited if not printed from

type set in the United States or from plates made from type set therein,

and the printing and _binding_ both performed within the limits of the

United States."

{Sidenote: Importation of foreign texts}

Where a work in a foreign language is copyrighted in the United States,

it was held by the Secretary of the Treasury (Treas. dec. no. 22751) in

1901, on advice of the Attorney-General, under the act of 1891, in the

case of Rostand's "L'Aiglon," that the original French edition must be

denied importation under the prohibition feature of the manufacturing

clause; but, as under the new code of 1909, "the original text of a work

of foreign origin in a language other than English," is excepted from

the manufacturing clause, it follows that such original text cannot be

denied importation on copyright grounds, though importation might be

restrained as a matter of equity by an assignee who had bought for the

American market the right to publish here. In the case, however, of

Liddel and Scott's Greek-English Lexicon, of which an American edition

was copyrighted previous to the law of 1891, on a question raised by the

American Book Co., the Secretary of the Treasury held in 1901 (Treas.

dec. no. 22781) that the English edition could not be denied

importation, as the law previous to 1891 did not contain the prohibition

incident to the manufacturing clause. The Attorney-General in this case

considered that while the clause against importation, being remedial,

might affect prior copyright, yet as it particularly applied to books

"so copyrighted" as not to be imported during the existence of "such

act should be denied importation--the law in general being prospective

in its effect. These two earlier opinions were taken into consideration

in the opinion in 1909 by Attorney-General Wickersham, who held that the

language of the new code did not warrant the same construction.

{Sidenote: Printing within country}

Under the law of 1891, the Secretary of the Treasury held in 1903

(Treas. dec. no. 24742) that books printed abroad from type set or

plates made within the United States could not be prohibited importation

under the manufacturing clause; but the clause has been so amended in

the code of 1909 that printing in this country from type set within the

United States or from plates made within the country from type thus set,

is required as a condition of copyright, and copyright does not hold if

any of these three conditions be neglected. It follows that in the case

of books so copyrighted and manufactured, any other edition must be

prohibited importation.

{Sidenote: Innocent importation}

An English decision holds that an importer is not innocent because he

does not know that an importation includes copyright matter; and the

wording of our law implies the same, though an American decision held

that a partner or employer is not chargeable with statute penalties for

acts done without his knowledge by a partner or agent.

{Sidenote: Books not claiming copyright}

An indirect and significant effect of the manufacturing proviso, in the

nature of a "boomerang" to American industries, is to prevent the

copyrighting of works which might otherwise be partly manufactured in

America. Thus the American versions of the Book of Common Prayer and of

Church Hymnals no longer seek American copyright, because the thin paper

editions, as on "Oxford paper," are necessarily printed abroad and could

not be imported if there were copyright on other editions which might be

made in America. Baedeker's "United States," though dealing exclusively

with and chiefly sold in this country, is not copyrighted, being

protected rather by the cost of reproducing its German-made maps and

text, and by its repute as a guide book and characteristic form, which

might under the doctrine of "fair use" give its American publishers some

common law protection against imitators.

{Sidenote: Periodicals may be imported}

{Sidenote: Composite books not admitted}

The code of 1909 permits the importation of periodicals containing

manufactured in the United States, but this permissive exception does

not extend to composite books; and under the law of 1891 the Treasury

Department held that in the case of a book of poems, some of which were

copyrighted in the United States, the book could not be imported unless

the parts containing copyrighted poems had been printed from type set

within the United States. Under this ruling, applied to the present law,

foreign-made copies of books containing American copyrighted poems or

other articles, must be denied importation, because these copyrighted

portions were not type-set, printed and bound in this country. It is

possible, however, that under the rule "_de minimis non curat lex_," a

court might not justify the prohibition of books incidentally containing

in small proportion poems, extracts or other negligible items of

American copyright. Thus if an English cyclopaedia contained copyrighted

contributions by American authors, such cyclopaedia would be denied

admission unless such contributions might be adjudged a negligible

proportion of the work.

{Sidenote: Rebinding abroad}

The prohibition of importation under the manufacturing proviso of

copyrighted books not bound in this country, has been construed by the

Attorney-General, in an opinion of March 1, 1910 (given in Treas. dec.

no. 30414), to refer to original bindings and not to rebindings.

"Manifestly a book is produced within the meaning of section 31 when it

is printed and bound; and the binding required to be done in the United

States is the original binding, the one which enters into the original

production of the book. When the manufacture of the book is thus

completed it is entitled to all the protection offered by the copyright

laws, and it may be exported and thereafter imported at the pleasure of

the owner. There is, furthermore, nothing in the act to indicate any

intention that a book may be deprived of this protection or right of

importation when it has once been acquired. If it shall become necessary

or proper that the book be rebound it is not thereby made a new book,

but remains the same book, the one that was printed and originally bound

in the United States as required by the statute."

{Sidenote: Importation of non-copyright translation}

A curious question as to the prohibition of importation arose in

connection with a Swedish translation of the "purity" books of the "Self

and sex" series, by Dr. Sylvanus Stall, of Philadelphia, author and

publisher of this series. The original works in this series are by an

American author written and printed in English and manufactured and

copyrighted in America; and there are translations into twenty or more

languages authorized by the author but not copyrighted in the United

States. The copyright proprietor made an importation of the Swedish

translation without question, but the second importation was stopped by

the customs authorities at Philadelphia on the ground that the Swedish

translation was a copy of the American copyrighted work and must

therefore be denied admission because not manufactured in America. On

appeal, the Treasury Department, June 23, 1910, overruled the local

authorities and admitted the translation made in Sweden, and bearing no

English."

{Sidenote: Books dutiable}

related with each other, chiefly because in this country the importation

of books for libraries is, to a limited extent, free from tariff duties

as well as from copyright restrictions. There is no real relation

between them, but the sections of the American tariff of 1910 dealing

with books and works of art may be cited for the convenience of

importers:

"(416) Books of all kinds, bound or unbound, including blank books,

slate books and pamphlets, engravings, photographs, etchings, maps,

charts, music in books or sheets, and printed matter, all the foregoing

wholly or in chief value of paper, and not specially provided for in

this section, twenty-five per centum ad valorem; views of any landscape,

scene, building, place, or locality in the United States on cardboard or

paper, not thinner than eight one-thousandths of one inch, by whatever

process printed or produced, including those wholly or in part produced

by either lithographic or photogelatin process (except show cards),

occupying thirty-five square inches or less of surface per view, bound

or unbound, or in any other form, fifteen cents per pound and

twenty-five per centum ad valorem; thinner than eight one-thousandths of

one inch, two dollars per thousand: Provided, That the rate or rates of

duty provided in the tariff Act approved July twenty-fourth, eighteen

hundred and ninety-seven, shall remain in force until October first,

nineteen hundred and nine, on all views of any landscape, scene,

building, place, or locality, provided for in this paragraph, which

shall have, prior to July first, nineteen hundred and nine, been ordered

or contracted to be delivered to bona fide purchasers in the United

States, and the Secretary of the Treasury shall make proper regulations

for the enforcement of this provision."

{Sidenote: Books on free list}

The following are included in the "free list" and are therefore free

from any duties:

"(516) Books, engravings, photographs, etchings, bound or unbound, maps

and charts imported by authority or for the use of the United States or

for the use of the Library of Congress.

"(517) Books, maps, music, engravings, photographs, etchings, bound or

unbound, and charts, which shall have been printed more than twenty

years at the date of importation, and all hydrographic charts and

publications issued for their subscribers or exchanges by scientific and

literary associations or academies, or publications of individuals for

gratuitous private circulation, and public documents issued by foreign

governments.

"(518) Books and pamphlets printed chiefly in languages other than

English; also books and music, in raised print, used exclusively by the

blind.

"(519) Books, maps, music, photographs, etchings, lithographic prints,

and charts, specially imported, not more than two copies in any one

invoice, in good faith, for the use and by order of any society or

institution incorporated or established solely for religious,

philosophical, educational, scientific, or literary purposes, or for the

encouragement of the fine arts, or the use and by order of any college,

academy, school, or seminary of learning in the United States, or any

state or public library, and not for sale, subject to such regulations

as the Secretary of the Treasury shall prescribe.

"(520) Books, libraries, usual and reasonable furniture, and similar

household effects of persons or families from foreign countries, all the

foregoing if actually used abroad by them not less than one year, and

not intended for any other person or persons, nor for sale."

{Sidenote: Library free importation}

The provisions as to importation for libraries are made unnecessarily

onerous by Treasury regulations intended to insure the identification of

the actual copies so imported. In practice such copies are usually

imported by library agents acting for the library and not only must

these agents make oaths and present evidence of authorization from the

library authorities, but the librarian must certify to the receipt of

the individual copy, before it can be technically cleared from the

custom house through which it is imported, and the importer relieved

from further liability. Blank forms for these purposes are prescribed

and provided by the Treasury Department.

{Sidenote: Copyrights and the free list}

The question whether copyrighted works could be imported because they

were included under the free list of the tariff came before the Treasury

Department in 1901. With respect to copyrighted music, the

Attorney-General considered the two questions whether the copyright law

prohibits the importation of copyright music and whether the free list

in the tariff constitutes an exception to the copyright law. He held as

to the latter that the tariff is to prescribe certain duties on

importations; it is not designed to authorize importation. It simply

provides when and under what circumstances certain articles are exempt

from duty. Accordingly copyrighted musical compositions are not taken

out of the effect of the copyright law. The Secretary of the Treasury

ruled (Treas. dec. no. 23225), in accordance with this advice, that

copyrighted music was prohibited importation,--but this refers to

importation without consent of the copyright proprietor.

{Sidenote: The duty on books}

Although not of copyright bearing, the significance in respect to

importations of books of the newly added phrase "wholly or in chief

value of paper" in the tariff act of 1909, which otherwise continued the

25 per cent duty on books, may here be mentioned, as of importance to

importers. It was included in the Payne tariff, apparently at the

instance of the bookbinding interests, and was at first construed by the

local customs authorities at New York to make books bound in leather

subject to the 40 per cent duty on leather, and books bound in silk

subject to the 50 per cent duty on silk, as the component parts of chief

value. The Secretary of the Treasury has, however, overruled this view

and admitted books thus bound under the 25 per cent duty on the ground

that "the limitation placed upon the paragraph by the addition of the

words not found in the previous law was intended to exclude from that

rate, books bound in such fancy or costly bindings as to be imported not

on account of their intrinsic literary merit or their value as books."

The Board of General Appraisers has since, however, rendered a decision

supporting the local appraisers.

{Sidenote: British prohibition of importation}

In Great Britain the copyright act of 1842 (sec. 17) provided that any

printed books, copyright in the United Kingdom, imported "for sale or

hire" as reprinted out of the British dominions otherwise than by "the

proprietor of the copyright or some person authorized by him" should be

forfeited, seized and destroyed by any customs or excise officer, and

the Customs act of 1843, setting forth that "great abuse had prevailed

with respect to introduction for private use," prohibited importation

for use as well as for sale or hire. The international copyright act of

1844 (sec. 10) excepted importations from the country "in which such

books were first published," but this act did not in terms repeal the

provisions of the acts of 1842 and 1843, and in the leading case of Pitt

Pitts _v._ George, in 1896, the Court of Appeal, two judges to one,

decided that this exception was inconsistent with the previous acts and

not good law. In this case an English music publisher who had purchased

British copyright in Raff's "La Fileuse," sued to restrain the

importation of the original German edition. The lower court, relying on

the statute of 1844, refused relief, but the Court of Appeal granted an

injunction, holding, through Judge Lindley, that the complete exclusion

given to the British proprietor by the act of 1842 "is most in

accordance with legal principles and good sense." It was further held

that where the copyright had been divided, the words "the proprietor of

the copyright" indicate the owner of the English rights, and that if he

had to "submit to an unlimited importation of books lawfully printed in

any part of Germany itself," the British copyright "would be absolutely

worthless, and the beneficial object frustrated," and protection by

covenant with the original proprietor is by no means adequate.

{Sidenote: Foreign reprints}

The colonial copyright act of 1847, usually known as the foreign

reprints act, authorized suspension by the Crown of the prohibition of

importation of foreign reprints, in any colony enacting "reasonable

protection to British authors"--which protection, in the twenty colonies

in which the act was availed of, usually took the shape of a stated duty

to be paid as royalty to the British copyright proprietor. The customs

consolidation act of 1876 continued the general prohibition, on

condition of notice by the proprietor of the British copyright to the

Commissioners of Customs.

{Sidenote: Divided market}

Thus the British copyright and customs law recognizes the subdivision of

accordingly foreign reprints whether piratical copies or authorized

foreign editions like the Tauchnitz series, and the original foreign

edition as well. In theory, if not in practice, a Tauchnitz copy in the

pocket of a traveler is subject to seizure, and written authority from

the copyright proprietor is technically necessary for the importation of

a single copy, apparently without exception in favor of the British

Government or the libraries.

{Sidenote: The new British code}

The new British measure continues these provisions as embodied in the

customs consolidation act of 1876 and the revenue act of 1889 and in the

text of the new act. Copyright is infringed by any person who "imports

for sale or hire any work ... which to his knowledge infringes

Kingdom, which if made therein would infringe copyright and as to which

the owner of the copyright gives written notice to the Commissioners of

Customs in accordance with regulations by the Commissioners, which

regulations may apply to all works or to different classes. The Isle of

Man is specifically excepted from the United Kingdom in respect to this

section. But the section is made applicable with the necessary

modifications to any included British possession in respect to copies

made out of that possession. The text of the new measure, retaining the

phrase "for sale or hire" from the act of 1842 and reaffirming the

customs act of 1876, which makes no such exception, continues an

unfortunate ambiguity as to the importation of copies for private use,

but precedent and court decisions favor the complete control of the

market by the copyright proprietor through the complete exclusion of

foreign copies.

{Sidenote: Canadian practice}

Canada had, in an act of 1850, availed itself of the foreign reprints

act by imposing a duty "not exceeding 20 per cent" on foreign reprints

of English works, and under this act the Dominion later became "flooded"

with cheap American reprints, while the royalty to British authors,

fixed at 12-1/2 percent, was so inadequately collected that only L1084

was paid in the ten years ending 1876. Canada accordingly passed its

works in Canada under Canadian copyright and prohibiting importation of

such works except in the original edition from the United Kingdom, and

this act, although opposed as an invasion of the exclusive control of

their works by British authors, was accepted by the British Parliament

in the Canada copyright act of the same year, with the proviso that

Canadian reprints should be prohibited importation into the United

Kingdom except with assent of the copyright proprietor. It has since

provided in the Fisher act of 1900 for the prohibition of importation of

an original edition of an English work licensed for reprint in Canada,

except two copies for libraries and one copy through demand on the

Canadian licensee by an individual for use and not for sale--a provision

considered _ultra vires_ by English authorities.

{Sidenote: Australian provision}

The Australian code of 1905 prohibits the importation of all pirated

books or artistic works in which copyright is subsisting in Australia,

"whether under this act or otherwise," and provides for the forfeiture

of such works, on condition of written notice by the owner of the

Customs of the United Kingdom, of the existence of the copyright and of

its term. These provisions do not seem to make clear whether original

editions of English works, of which an Australian edition is

copyrighted, are held to be contraband.

{Sidenote: Foreign practice}

The legislation of France and Germany and other countries seems to

provide against importation inferentially rather than specifically,

Russia and Peru being exceptional in their specific prohibitions. But

the treaties and conventions between the several countries are for the

most part specific on this point, as are those of France providing that

"when the author of a work of which the property rights are guaranteed

by the present treaty shall have assigned his right of publication or of

reproduction to a publisher in the territory of either of the high

contracting parties with the reservation that the copies or editions of

this work thus published or reproduced cannot be sold in the other

country, these copies or editions shall be considered and treated,

respectively, in that country as illicit reproductions"; and the

treaties of Germany are especially specific with respect to musical

compositions.

The authorities as to the prohibition of importation in other countries

are fully given in a statement from the Librarian of Congress made part

of the printed record of the third hearing before the Patents Committees

at Washington, March 26-28, 1908, which includes the text of the opinion

in Pitt Pitts _v_. George as the leading English case.

{Sidenote: International practice}

The Berne convention of 1886 provided (art. XII) that "every infringing

(_contrefait_) work may be seized on importation into those countries of

the Union where the original work has right to legal protection," which

was modified by the amendatory act of Paris, 1896, to read "may be

seized by the competent authorities of the countries of the Union." The

Berlin convention continues in article 16 the later phraseology, and

adds, "in these countries seizure may also be made of reproductions

coming from a country where the work is not protected or protection has

ceased." All three conventions include also the proviso that the seizure

shall take place conformably to the domestic legislation of each

country. This phraseology apparently leaves the prohibition of editions

authorized for other countries as an open question to be determined

under the domestic legislation or practice of each country. The Pan

American convention of Buenos Aires, 1910, provides (art. 14): "Every

publication infringing a copyright may be confiscated in the signatory

countries in which the original work had the right to be legally

protected, without prejudice to the indemnities or penalties which the

counterfeiters may have incurred according to the laws of the country in

which the fraud may have been committed."

XVII

{Sidenote: History of Copyright Office}

Under the early American copyright laws, copyright entries and deposits

were made in the clerk's office of the respective District courts and

there was no central copyright office. The deposit copies were not

properly cared for, but what remained were collected into the vaults of

the national Capitol when copyright administration was centralized in

the Library of Congress. Under the law of 1870, the Librarian of

Congress was made the copyright officer, and for many years Ainsworth R.

Spofford, occupying that position, personally recorded entries and did

much of the work. Before the close of his administration of the Library,

and while it was still housed in the Capitol, the copyright business

required the services of a staff including at the last twenty-four

persons. By a special act of 1897, the office of Register of Copyrights

was created, subject to the authority of the Librarian of Congress, who

remains the ultimate administrative authority. The code of 1909 provided

also for an assistant register of copyrights. The Copyright Office now

occupies the southern end of the ground floor in the new Library

building and the staff has increased to eighty-four persons.

{Sidenote: Routine of registration}

When a book is deposited for registration, accompanied by the claim for

the Copyright Office, its class designation, with its accession or

sequence number in that class, is at once stamped upon the deposit copy

or copies, with the date of receipt, and also upon a green record slip

on which all details in the progress of the work through the Copyright

Office are recorded with exact time of each act and the initials of the

respective clerks. This record, when completed, shows, besides the class

number and the title of the work, the date and hour of the receipt of

deposit copies and of the receipt of application, affidavit and fee,

with memorandum of the disposition of the fee if out of the ordinary

course; the examination of the application and affidavit, the

preparation of the white card for printer's copy, and the clearance of

the work. Thus cleared, the book is ready for examination by the Library

Commission, the delivery of one copy to the Catalogue Division of the

Library of Congress, the making of the certificate and its record and

the making of the index cards, all of which acts are performed usually

on the day of receipt, or otherwise as early as practicable on the

following day. The record slip also provides for noting and notifying

claimants of defects as to the deposit copies or the application for

the disposition of second deposit copies.

{Sidenote: Treatment of deposits}

The deposit copies, as entered on day of receipt and stamped with date,

group and accession number, are placed on a table for inspection by what

is known as the Library Commission of the Library of Congress,

consisting of the Assistant Librarian, the Superintendent of the Reading

Room and the Chief of the Catalogue Division, who decide which books are

desired for the Library of Congress, and whether one or two copies

thereof are required; one copy not so required is retained as part of

the records of the Copyright Office. Accumulations of the past years and

current accessions were until recently stored in the sub-basement of the

Library of Congress building, but a new stack now furnishes abundant and

well-lighted space for deposit copies and gradually all deposit articles

will be removed to this stack. The new provision for the destruction of

useless material happily prevents the continuing storage of such

material to an indefinite future.

{Sidenote: Destruction of useless material}

The Librarian of Congress and the Register of Copyrights jointly are

authorized "at suitable intervals" to determine what articles received

during any period of years and remaining undisposed of, are useful for

permanent preservation, and in their discretion to provide for the

destruction of others, after a statement of the years of receipt of such

articles and notice to permit any lawful claimant to claim and remove

them has been printed in the catalogue of copyright entries from

February to November, permitting their reclamation within the month of

December. There is a special proviso that no manuscript of an

unpublished work shall be destroyed during the term of copyright without

specific notice to the copyright proprietor of record, permitting him to

claim and remove it.

{Sidenote: Register of Copyrights}

The Register of Copyrights, originally appointed by the Librarian of

Congress under the act of February 19, 1897, is made by the new code of

1909 a permanent administrative officer, appointed by and under the

direction and supervision of the Librarian of Congress at a salary of

$4000 per year and under bonds of $20,000. He is authorized under the

law to make rules and regulations for the registration of claims to

required to make an annual report to the Librarian of Congress to be

printed in the annual report on the Library of Congress; to cover all

fees into the Treasury and report as to the same to the Secretary of the

Treasury and to the Librarian of Congress, and to provide and keep the

necessary record books, indexes, etc. He is authorized to affix the seal

of the Copyright Office provided for by law, and is happily relieved by

the new code from the necessity of formal signature of certificates,

etc., which under the old law wasted precious and difficult hours in

small routine work, the affixing of the seal being the sufficient and

sensible substitute for the personal signature. An assistant register of

copyrights at a salary of $3000 was provided for in the new act, also to

be appointed by the Librarian of Congress, with authority during the

absence of the Register to attach the seal and perform other necessary

functions.

{Sidenote: Catalogues and indexes}

The law directs that the Register of Copyrights "shall print at periodic

intervals a catalogue of the titles of articles ... together with

suitable indexes, and at stated intervals ... complete and indexed

catalogues for each class of copyright entries, "which shall be admitted

in any court as _prima facie_ evidence," shall be promptly distributed

to collectors of customs and postmasters of all exchange offices and

shall be furnished to others at a price not exceeding $5 per annum for

the complete catalogue or $1 for the catalogues issued during the year

for any one class.

The practice of the Copyright Office is to make for each copyrighted

book an index card, in conformity with the printed catalogue card of the

Library of Congress, and to utilize the linotype slugs set for this

purpose, with some modification, as the basis for the "Catalogue of

Group 1, is printed weekly with an annual index, which, together with

Part I, Group 2, issued monthly with more condensed entries,--containing

the titles for all other material registered under the legal designation

"book," not found in Group 1,_ i. e._, local directories and other

annuals, pamphlets, leaflets and literary contributions to periodicals,

as also dramatic compositions, lectures and maps, including also the

preliminary reports of court decisions,--may be subscribed for at a

price of $1 per year. Part II, appearing monthly, covers periodicals,

with an annual index, at fifty cents per year. Part III, appearing

monthly, covers music, with an annual index, at $1 per year. Part IV,

appearing monthly, covers works of art, reproductions of a work of art,

drawings or plastic works of a scientific character, photographs and

prints and pictorial illustrations, with an annual index, at fifty cents

per year. The subscription price for the entire catalogue is $3 per

year. Subscriptions should be sent direct to the Superintendent of

Documents, Washington, D. C., with money orders or drafts in his name

(stamps and uncertified checks not accepted), and should not be sent to

the Librarian of Congress or to the Copyright Office.

{Sidenote: Entry cards}

The Library of Congress prints for all such books as are selected from

the copyright deposits for use in the Library, on the decision of the

Commission appointed by the Librarian, a catalogue card which forms part

of the library card catalogue system, and which can be had by public

libraries and by private purchasers at the price of two cents a card.

This card is used for the catalogues of the Library of Congress and for

the catalogues of depository libraries throughout the country, but is

not furnished in exchange by the Smithsonian Institution to foreign

institutions. The catalogue cards for "books" in Group 2, representing

considerably more than twice as many registrations as Group I, as well

as the index cards for all articles comprised in the remaining classes

of copyright deposits, are prepared in the Copyright Office, and are not

furnished to other libraries or to the public.

{Sidenote: Text provisions}

The provisions as to the Copyright Office, its administration, methods

and practice, are set forth in the American code of 1909 in much detail,

as follows:

{Sidenote: Copyright records}

"(Sec. 47.) That all records and other things relating to copyrights

required by law to be preserved shall be kept and preserved in the

under the control of the register of copyrights, who shall, under the

direction and supervision of the Librarian of Congress, perform all the

duties relating to the registration of copyrights.

{Sidenote: Register of copyrights and assistant register}

"(Sec. 48.) That there shall be appointed by the Librarian of Congress a

and one assistant register of copyrights, at a salary of three thousand

dollars per annum, who shall have authority during the absence of the

issued from the said office and to sign such certificates and other papers

as may be necessary. There shall also be appointed by the Librarian such

subordinate assistants to the register as may from time to time be

authorized by law.

{Sidenote: Deposit and report of fees}

"(Sec. 49.) That the register of copyrights shall make daily deposits in

some bank in the District of Columbia, designated for this purpose by the

Secretary of the Treasury as a national depository, of all moneys received

to be applied as copyright fees, and shall make weekly deposits with the

Secretary of the Treasury, in such manner as the latter shall direct, of

all copyright fees actually applied under the provisions of this Act, and

annual deposits of sums received which it has not been possible to apply

as copyright fees or to return to the remitters, and shall also make

monthly reports to the Secretary of the Treasury and to the Librarian of

Congress of the applied copyright fees for each calendar month, together

with a statement of all remittances received, trust funds on hand, moneys

refunded, and unapplied balances.

{Sidenote: Bond}

"(Sec. 50.) That the register of copyrights shall give bond to the United

States in the sum of twenty thousand dollars, in form to be approved by

the Solicitor of the Treasury and with sureties satisfactory to the

Secretary of the Treasury, for the faithful discharge of his duties.

{Sidenote: Annual report}

"(Sec. 51.) That the register of copyrights shall make an annual report to

the Librarian of Congress, to be printed in the annual report on the

Library of Congress, of all copyright business for the previous fiscal

year, including the number and kind of works which have been deposited in

the copyright office during the fiscal year, under the provisions of this

Act.

{Sidenote: Seal}

"(Sec. 52.) That the seal provided under the Act of July eighth, eighteen

hundred and seventy, and at present used in the copyright office, shall

continue to be the seal thereof, and by it all papers issued from the

{Sidenote: Rules}

"(Sec. 53.) That, subject to the approval of the Librarian of Congress,

the register of copyrights shall be authorized to make rules and

regulations for the registration of claims to copyright as provided by

this Act.

{Sidenote: Record books}

"(Sec. 54.) That the register of copyrights shall provide and keep such

record books in the copyright office as are required to carry out the

provisions of this Act, and whenever deposit has been made in the

shall make entry thereof.

{Sidenote: Certificate}

{Sidenote: Receipt for deposits}

"(Sec. 55.) That in the case of each entry the person recorded as the

claimant of the copyright shall be entitled to a certificate of

registration under seal of the copyright office, to contain his name and

address, the title of the work upon which copyright is claimed, the date

of the deposit of the copies of such work, and such marks as to class

designation and entry number as shall fully identify the entry. In the

case of a book the certificate shall also state the receipt of the

affidavit as provided by section sixteen of this Act, and the date of the

completion of the printing, or the date of the publication of the book, as

stated in the said affidavit. The register of copyrights shall prepare a

printed form for the said certificate, to be filled out in each case as

above provided for, which certificate, sealed with the seal of the

any person making application for the same, and the said certificate shall

be admitted in any court as prima facie evidence of the facts stated

therein. In addition to such certificate the register of copyrights shall

furnish, upon request, without additional fee, a receipt for the copies of

the work deposited to complete the registration.

{Sidenote: Catalogue and index provision}

"(Sec. 56.) That the register of copyrights shall fully index all

intervals a catalogue of the titles of articles deposited and registered

for copyright, together with suitable indexes, and at stated intervals

shall print complete and indexed catalogues for each class of copyright

entries, and may thereupon, if expedient, destroy the original manuscript

catalogue cards containing the titles included in such printed volumes and

representing the entries made during such intervals. The current

catalogues of copyright entries and the index volumes herein provided for

shall be admitted in any court as prima facie evidence of the facts stated

therein as regards any copyright registration.

{Sidenote: Distribution and subscriptions}

"(Sec. 57.) That the said printed current catalogues as they are issued

shall be promptly distributed by the copyright office to the collectors of

customs of the United States and to the postmasters of all exchange

offices of receipt of foreign mails, in accordance with revised lists of

such collectors of customs and postmasters prepared by the Secretary of

the Treasury and the Postmaster-General, and they shall also be furnished

to all parties desiring them at a price to be determined by the register

of copyrights, not exceeding five dollars per annum for the complete

catalogue of copyright entries and not exceeding one dollar per annum for

the catalogues issued during the year for any one class of subjects. The

consolidated catalogues and indexes shall also be supplied to all persons

ordering them at such prices as may be determined to be reasonable, and

all subscriptions for the catalogues shall be received by the

Superintendent of Public Documents, who shall forward the said

publications; and the moneys thus received shall be paid into the Treasury

of the United States and accounted for under such laws and Treasury

regulations as shall be in force at the time.

{Sidenote: Records open to inspection and copying}

"(Sec. 58.) That the record books of the copyright office, together with

the indexes to such record books, and all works deposited and retained in

the copyright office, shall be open to public inspection; and copies may

be taken of the copyright entries actually made in such record books,

subject to such safeguards and regulations as shall be prescribed by the

{Sidenote: Preservation of deposits}

"(Sec. 59.) That of the articles deposited in the copyright office under

the provisions of the copyright laws of the United States or of this Act,

the Librarian of Congress shall determine what books and other articles

shall be transferred to the permanent collections of the Library of

Congress, including the law library, and what other books or articles

shall be placed in the reserve collections of the Library of Congress for

sale or exchange, or be transferred to other governmental libraries in the

District of Columbia for use therein.

{Sidenote: Disposal of deposits}

"(Sec. 60.) That of any articles undisposed of as above provided, together

with all titles and correspondence relating thereto, the Librarian of

Congress and the register of copyrights jointly shall, at suitable

intervals, determine what of these received during any period of years it

is desirable or useful to preserve in the permanent files of the copyright

office, and, after due notice as hereinafter provided, may within their

discretion cause the remaining articles and other things to be destroyed:

_Provided_, That there shall be printed in the Catalogue of Copyright

Entries from February to November, inclusive, a statement of the years of

receipt of such articles and a notice to permit any author, copyright

proprietor, or other lawful claimant to claim and remove before the

expiration of the month of December of that year anything found which

relates to any of his productions deposited or registered for copyright

within the period of years stated, not reserved or disposed of as provided

for in this Act: _And provided further_, That no manuscript of an

unpublished work shall be destroyed during its term of copyright without

specific notice to the copyright proprietor of record, permitting him to

claim and remove it.

{Sidenote: Fees}

{Sidenote: Only one registration required}

"(Sec. 61.) That the register of copyrights shall receive, and the persons

to whom the services designated are rendered shall pay, the following

fees: For the registration of any work subject to copyright, deposited

under the provisions of this Act, one dollar, which sum is to include a

certificate of registration under seal: _Provided_, That in the case of

photographs the fee shall be fifty cents where a certificate is not

demanded. For every additional certificate of registration made, fifty

cents. For recording and certifying any instrument of writing for the

assignment of copyright, or any such license specified in section one,

subsection (e), or for any copy of such assignment or license, duly

certified, if not over three hundred words in length, one dollar; if more

than three hundred and less than one thousand words in length, two

dollars; if more than one thousand words in length, one dollar additional

for each one thousand words or fraction thereof over three hundred words.

For recording the notice of user or acquiescence specified in section one,

subsection (e), twenty-five cents for each notice if not over fifty words,

and an additional twenty-five cents for each additional one hundred words.

For comparing any copy of an assignment with the record of such document

in the copyright office and certifying the same under seal, one dollar.

For recording the extension or renewal of copyright provided for in

sections twenty-three and twenty-four of this Act, fifty cents. For

recording the transfer of the proprietorship of copyrighted articles, ten

cents for each title of a book or other article, in addition to the fee

prescribed for recording the instrument of assignment. For any requested

search of copyright office records, indexes, or deposits, fifty cents for

each full hour of time consumed in making such search: _Provided_, That

only one registration at one fee shall be required in the case of several

volumes of the same book deposited at the same time."

{Sidenote: Present organization}

The organization of the Copyright Office under the present

administration of the Librarian of Congress, Herbert Putnam, appointed

by President McKinley in 1898, and the Register of Copyrights, Thorvald

Solberg, the first and only occupant of that post, appointed by the

Librarian of Congress in 1897, presents a standard of efficiency,

celerity and economy which is a model for governmental departments, or

indeed for any administrative business. The enormous amount of detail is

systematized and controlled by a remarkable method of record, and blank

forms provide in the utmost variety of detail for every feature of the

work of correspondence, especially in calling the attention of

applicants to defects in their applications, which are many and various.

{Sidenote: Efficiency of methods}

As the result of this organization, the complex law of March 4, 1909,

was put in operation July 1, 1909, without a hitch; and inquiries made

to the Copyright Office are answered, usually on the same day, with

remarkable dispatch and accuracy. For instance, the many letters

directed mistakenly to the Register of Copyrights, instead of to the

Commissioner of Patents, the frequent applications for the protection of

prints designed for articles of manufacture, and the multitudinous

applications on articles not subject to copyright, or for projected

works or for book manuscripts previous to publication, are each covered

by a form letter with an index card of a distinctive color for each, so

that a full record is kept in the Copyright Office of such errors

without unduly complicating the copyright records proper. The Copyright

Office now handles approximately half a million items of entries,

deposits and correspondence during the year, and covers into the

Treasury more than $100,000, returning to the government a substantial

sum above the direct cost of administration.

{Sidenote: Registration 1909-1910}

The Copyright Office prints annually a summary of its work, from which

it appears that in the year ending June 30, 1910, the first year of

operation of the new copyright code, it had issued copyright

certificates to the number of 96,634, representing an equal number of

registrations at $1 each. In addition thereto 11,433 registrations were

made for photographs at fifty cents each, for which no certificates were

issued. This annual summary for the fiscal year ending June 30 is

printed as a part of the annual report, for presentation to Congress

each December; and a summary for the calendar year is printed in

separate form at the beginning of the new year.

{Sidenote: Certificates for court use}

In addition to the regular certificates in card form, the Copyright

Office also issues certificates in quarto shape when desired, which are

especially utilized in court proceedings as parts of the record.

{Sidenote: Searches}

The Copyright Office makes searches for information, under the

provisions of the new law, at the rate of fifty cents for each full hour

of the person employed in such search.

The new Rules provide for such searches as follows:

"(49.) Upon application to the Register of Copyrights, search of the

records, indexes, or deposits will be made for such information as they

may contain relative to copyright claims. Persons desiring searches to

be made should state clearly the nature of the work, its title, the name

of the claimant of copyright and probable date of entry; in the case of

an assignment, the name of the assignor or assignee or both, and the

name of the copyright claimant and the title of the music referred to in

case of notice of user."

{Sidenote: Patent Office registry for labels}

Question having been raised by the Commissioner of Patents whether the

act of 1909 did not charge the Copyright Office with the registration as

"prints" of labels, etc., the Attorney-General, in an opinion of

December 22, 1909, held that the copyright act of 1909 did not relieve

the Patent Office of this duty, and it is still required to register all

prints which have heretofore been registered therein under the act of

June 18, 1874, and in the same manner as they have heretofore been

registered.

Many of the features of the Copyright Office, such as the forms for

applications, certificates, etc., have been treated in detail in the

chapter on formalities, which should be read in connection with this

chapter.

{Sidenote: Foreign practice}

In Great Britain there is no official copyright office, but registration

has been made at Stationers' Hall in charge of the Stationers' Company,

a _quasi_ public institution, while deposit is made primarily in the

national library at the British Museum. The records at Stationers' Hall

and the printed or other catalogues of the British Museum are public.

But there is no printed copyright list except of prohibitions of

importations issued by the Commissioners of Customs. Under the new

British measure there is no registration at Stationers' Hall or

elsewhere.

In France there is no copyright office proper and the deposit copies

required from the printer are deposited with the Ministry of the

Interior at Paris or at the Prefecture or town clerk's office in the

provinces. In other European countries, the registration, when required,

is made for the most part in one of the government departments, as

Ministry of Interior, Department of Agriculture, etc. In Italy, as in

several Spanish-American countries, the registry is provincial instead

of central, though in some of these countries provision is made for

report from time to time to a central government office. In few

countries is there a copyright office proper, distinctively organized

and named, except in certain English colonies, as Australia and Canada,

which have now a copyright office and a Registrar of Copyrights.

XVIII

INTERNATIONAL COPYRIGHT CONVENTIONS AND ARRANGEMENTS

{Sidenote: International protection of property}

With the growth of civilization, the practice of protecting in all

countries the property of the citizen of any other country has also

grown, until it is now a generally recognized principle. This principle,

applied to literary property, has resulted in international copyright

among most civilized nations.

{Sidenote: Early copyright protection}

The first provision for international copyright, aside from the ancient

practice in France of giving protection to authors of other countries

who published their works therein, was made by Prussia in 1837, in a law

which provided that any country might secure copyright for its authors

in Prussia to the extent of reciprocal privileges granted by that

country.

{Sidenote: Early English protection}

England followed, in 1838, with an "act for securing to authors, in

certain cases, the benefit of international copyright," which empowered

the Queen, by an Order in Council, to direct that the author of a book

first published in a foreign country should have copyright in the United

Kingdom, on certain conditions, providing that country conferred similar

privileges on English authors. The act of 1844 extended this privilege

to prints, sculpture and other works of art, and provided for

international playright. It expressly denied the privilege, however, to

translations of foreign works, and it was not until 1852 that provision

was fully made for translations of books and of dramatic compositions,

the latter with the proviso that "fair imitations or adaptations" of

foreign plays or music might be made. In this early period Great Britain

negotiated treaties with the German states (1846-55), France (1851),

Belgium (1854), Spain (1857), and Sardinia (1860), afterward extended

throughout Italy. The treaties generally included a proviso that duties

on books, etc., imported into the treaty country, should not be above a

stated sum, and in the case of France there was to be no duty either

way. The domestic copyright acts had also provided, on the condition of

first publication in the United Kingdom, a practical measure of

international copyright. The international copyright act of 1875

repealed the exception as to plays, and authorized the protection of

foreign plays against imitation and adaptation. Under these

international copyright acts, registration at Stationers' Hall, at a fee

of one shilling only, was made a condition of the copyright of foreign

works, and the deposit of a copy of the first edition and of every

subsequent edition containing additions or alterations at Stationers'

Hall, for transmission to the British Museum, was required, besides

other local formalities, particularly in connection with the limited

protection of translations, which was for five years only.

{Sidenote: Adhesion to Berne convention}

Great Britain became a signatory power of the Berne convention of 1886,

and the international copyright act of 1886, amending and in part

repealing the previous international copyright acts, was passed to

enable Her Majesty through Orders in Council to become a party to this

convention, which was ratified in 1887. This was made effective with

respect to the eight other countries which were parties to the original

Berne convention by the Order in Council of November 28, 1887, taking

effect December 6, 1887. The provisions of 1886 made registration and

deposit unnecessary for foreign works which had complied with the

formalities requisite in the country of origin, but it was nevertheless

held in Fishburn _v._ Hollingshead, in 1891, by Justice Stirling, that a

foreign work must comply with the provisions of the copyright acts

applicable, as to registration and delivery, to works first produced in

the United Kingdom, since a foreign work was entitled only to the

protection afforded to natives. In Hanfstaengl _v._ Holloway, in 1893,

Justice Charles took the opposite view, and he was supported by the

Court of Appeal in Hanfstaengl _v._ American Tobacco Company, in 1894,

which decided finally that the acts of 1842 and 1844 were repealed as to

foreign works and that registration and deposit of a foreign work were

unnecessary. The decision of the Court of Appeal in 1908, in Sarpy _v._

Holland, that notice of reservation may be in foreign languages,

confirmed the provisions that no formalities beyond those in the country

of origin were requisite.

{Sidenote: Effect of Berne convention}

With the development of the International Copyright Union, through the

Berne convention of 1886, copyright relations between the leading

countries became more largely and truly international, and most of the

existing treaties of the unionist countries were superseded by the

international convention proper. In accordance, however, with the terms

of the convention, treaties broader than the provisions of the

convention might still remain in force or be later negotiated between

one country and another, and such conventions, on the "most favored

nation" basis or otherwise, have in fact been negotiated, especially by

Germany, within the present century. The arrangement for protection of

foreign works in unionist and other countries, under special treaties,

will be found in succeeding chapters on copyright in foreign countries,

where treaties broader than the international convention or made since

1900 are also scheduled. The main features of international copyright

arrangements are tabulated in condensed form in the conspectus of

{Sidenote: International literary congresses}

At the time of the Universal Exposition in Paris in 1878, the French

_Societe des Gens de Lettres_ issued invitations for an International

Literary Congress, which was held in Paris, under the presidency of

Victor Hugo, commencing June 4, 1878. From this came the _Association

Litteraire et Artistique Internationale_, which held subsequent

congresses at London in 1879, at Lisbon in 1880, at Vienna in 1881, at

Rome in 1882, at Amsterdam in 1883, at Brussels in 1884, and at Antwerp

in 1885, at which the extension of international copyright was discussed

and advocated.

{Sidenote: Fundamental proposition}

The Congress at Antwerp, in 1885, ratified the following proposition:

"The author's right in his work constitutes an inherent right of

property. The law does not create, but merely regulates it."

{Sidenote: Preliminary official conference, 1883}

Partly at the initiative of this association and at the invitation of

the Swiss government, a preliminary conference of official

representatives of the several nations was held at Berne in September,

1883, at which the following draft, submitted by the International

Literary and Artistic Association, was substantially adopted as the

basis for a general convention on the part of civilized nations:

"1. The authors of literary or artistic works published, represented, or

executed in one of the contracting States, shall enjoy, upon the sole

condition of accomplishing the formalities required by the laws of that

State, the same rights for the protection of their works in the other

States of the Union, whatever the nationality of the authors may be, as

are enjoyed by natives of the States.

{Sidenote: Propositions of 1883}

"2. The term literary or artistic works comprises books, pamphlets, and

all other writings; dramatic and dramatico-musical works; musical

compositions, with or without words, and arrangements of music;

drawings, paintings, sculptures, engravings, lithographs, maps, plans,

scientific sketches, and generally all other literary, artistic, and

scientific works whatsoever, which may be published by any system of

impression or reproduction whatsoever.

"3. The rights of authors extend to manuscript or unpublished works.

"4. The legal representatives and assignees of authors shall enjoy in

all respects the same rights as are awarded by this convention to

authors themselves.

"5. The subjects of one of the contracting States shall enjoy in all the

other States of the Union during the subsistence of their rights in

their original works the exclusive right of translation. This right

comprises the right of publication, representation, or execution.

"6. Authorized translations are protected in the same manner as original

works. When the translation is of a work which has become public

property, the translator cannot prevent the work from being translated

by others.

"7. In the case of the infringement of the above provisions, the courts

having jurisdiction will apply the laws enacted by their respective

legislatures, just as if the infringement had been committed to the

prejudice of a native. Adaptation shall be considered piracy, and

treated in the same manner.

"8. This convention applies to all works that have not yet become public

property in the country in which they were first published at the time

of coming into force of the convention.

"9. The States of the Union reserve to themselves the right of entering

into separate agreements among themselves for the protection of literary

or artistic works, provided that such agreements are not contrary to any

of the provisions of the present convention.

"10. A Central International Office shall be established, at which shall

be deposited by the Governments of the States of the Union the laws,

decrees, and regulations affecting the rights of authors which have

already been or shall hereafter be promulgated in any of the said

Governments. This office shall collect the laws, etc., and publish a

periodical print in the French language, in which shall be contained all

the documents and information necessary to be made known to the parties

interested."

{Sidenote: First official conference, 1884}

This draft, as adopted, was submitted by the Swiss government to the

first formal international conference for the protection of the rights

of authors, held at Berne from September 8 to 19, 1884. At this

conference representatives from thirteen countries were

present--Austria, Belgium, Costa Rica, France, Germany, Great Britain,

Haiti, Holland, Italy, Salvador, Sweden and Norway, and Switzerland; and

the result of their deliberations was a new "draft convention for the

creation of a general union for the protection of the rights of

authors," similar to the Universal Postal Union, in the following form:

"1. Authors placing themselves within the jurisdiction of the

contracting countries will be afforded protection for their works,

whether in print or manuscript, and will have all the advantages of the

laws of the different nations embraced in the Union.

"2. These privileges will be dependent upon the carrying out of the

conditions and formalities prescribed by the legislation of the author's

native country, or of the country in which he chooses to first publish

his work, such country being, of course, one of those included in the

convention.

"3. These stipulations apply alike to editors and authors of literary

works, as well as to works of art published or created in any country of

the Union.

"4. Authors within the jurisdiction of the Union will enjoy in all the

countries the exclusive rights of translation of their works during a

period of ten years after publication in any one country of the Union of

an authorized translation.

"5. It is proposed that it shall be made legal to publish extracts from

works which have appeared in any country of the Union, provided that

such publications are adapted for teaching or have a scientific

character. The reciprocal publication of books composed of fragments of

various authors will also be permitted. It will be an indispensable

condition, however, that the source of such extracts shall at all times

be acknowledged.

"6. On the other hand, it will be unlawful to publish, without special

permission of the holder of the copyright, any piece of music, in any

collection of music used in musical academies.

"7. The rights of protection accorded to musical works will prohibit

arrangements of music containing fragments from other composers, unless

the consent of such composer be first obtained."

{Sidenote: Second official conference, 1885}

A second international conference was held at Berne from September 7 to

18, 1885, for the further consideration of the project. This was

participated in by representatives from sixteen countries,--Argentina,

Belgium, Costa Rica, France, Germany, Great Britain, Haiti, Honduras,

Holland, Italy, Paraguay, Sweden and Norway, Spain, Switzerland, and

Tunis. The United States was also represented at that conference by a

"listening delegate," Boyd Winchester, then the United States minister

at Berne.

{Sidenote: Third official conference, 1886}

The negotiations at Berne culminated at the third formal conference, of

September 6 to 9, 1886, by agreement on a convention constituting an

international copyright union, the _Union Internationale pour la

Protection des OEuvres Litteraires et Artistiques_, which was signed on

September 9, by the plenipotentiaries of ten countries, Great Britain,

Germany, Belgium, Spain, France, Haiti, Italy, Switzerland, Tunis and

Liberia. At this conference the United States was represented only as in

1885.

{Sidenote: Berne convention, 1886:}

The convention included twenty-one articles besides an additional

article and final protocol, article I being as follows: "The contracting

States are constituted into an Union for the protection of the rights of

authors over their literary and artistic works."

{Sidenote: Authors and terms}

It was provided (art. II) that authors of any one of the countries shall

enjoy in the other countries the same rights as natives, on complying

with the formalities prescribed in the country of origin, _i. e._, of

first publication, or in case of simultaneous publication, in the

country having the shortest term of protection, for a period not

exceeding the term of protection granted in the country of origin. This

protection was extended (art. III) to the publishers within the Union of

works whose authors belong to a country outside the Union.

{Sidenote: "Literary and artistic works" defined}

The expression "literary and artistic works" was defined (art. IV) by

specification, including dramatic and musical works, but not mentioning

photographs or actual works of architecture. Translations were protected

(art. V) for ten years, which period should run for works published in

incomplete parts (_livraisons_) from the publication of the last part,

or in the case of volumes or serial collections (_cahiers_), from that

of each volume, and in all cases from the thirty-first of December of

the calendar year of publication. Authorized translations were protected

(art. VI) as original works, but translators of works in the public

domain could not oppose other translations. Reproduction of newspaper or

periodical articles was permitted (art. VII) unless expressly forbidden,

but this prohibition could not apply to political discussions, news

matter or "current topics" (_faits divers_). Liberty of extract from

literary or artistic works otherwise was left (art. VIII) to domestic

legislation or specific treaties.

{Sidenote: Performing rights}

Protection was specifically extended (art. IX) to the representation of

dramatic or dramatico-musical works or translations thereof, and, on

condition of express reservation, to musical works; and adaptations,

arrangements, and other unauthorized indirect appropriations were

specially included (art. X) among illicit reproductions subject to

determination by the courts of the respective countries.

{Sidenote: Other provisions}

The author indicated on a work, or the publisher of an anonymous or

pseudonymous work, was given (art. XI) authority to institute

proceedings, but the tribunal might require certificate that the

formalities in the country of origin had been accomplished. Pirated

(_contrefait_) works might be seized (art. XII) on importation,

according to domestic law. The convention was not to derogate (art.

XIII) from the right of each country to domestic control by legislation

or police. Existing works, not fallen into the public domain in the

country of origin (art. XIV), were protected. The several countries

reserved (art. XV) the right to make separate and particular treaty

arrangements. An international office was established (art. XVI) under

the name of "Office of the International Union for the Protection of

Literary and Artistic Works," under the authority of the Swiss

Confederation, the expenses to be borne by the signatory countries.

Revision at future conferences was provided for (art. XVII) with

stipulation that alterations should not be binding except by unanimous

consent. Accession of other countries was permitted (art. XVIII) on

notice to the Swiss Confederation, and similar provision was made (art.

XIX) for the accession of colonies. Ratification within one year (art.

XX) and operation within three months thereafter (art. XXI) and

withdrawal by one year's notice of denunciation were provided for. The

"additional article" provided that the convention should not affect

existing conventions between the states, conferring more extended powers

or containing other stipulations not contrary to the convention.

{Sidenote: Final protocol}

On the exchange of ratifications September 5, 1887, a final protocol was

agreed upon, extending article IV to cover photographs in those

countries whose domestic legislation or treaty arrangements permitted

such protection; extending article IX to choregraphic works in countries

in which they were covered by domestic legislation; explicitly excepting

mechanical music reproductions from protection; and specifically

referring to domestic or treaty arrangements, the protection afforded by

article XIV to existing works not fallen into the public domain. The

final protocol also provided for the organization of the international

office under regulation by the Swiss Confederation, for French as the

official language, for the allotment of expenses among the countries,

and for other administrative details.

{Sidenote: Ratification in 1887}

The Berne convention, as signed in that city September 9, 1886, by the

representatives of ten nations, Great Britain, Germany, Belgium, Spain,

France, Haiti, Italy, Switzerland, Tunis and Liberia, was ratified in

the same city September 5, 1887, by exchange of ratifications on the

part of all these powers except Liberia, and became effective December

5, 1887. The French acceptance included Algiers and the other French

colonies, the Spanish acceptance all Spanish colonies, and the British

acceptance, India, Canada and Newfoundland, the South African and the

Australian colonies. To these powers were later added Luxemburg (1888),

Monaco (1889), Montenegro (1893), which however withdrew in 1900, Norway

(1896), Japan (1899), Denmark (1903), Sweden (1904), and Great Britain's

new colonies, the Transvaal and Orange Free State (1903), leaving three

nations of first rank outside the Union, _i. e._, Austria-Hungary,

Russia, and the United States, aside from the South American countries

later associated in the Pan American Union.

{Sidenote: Paris conference, 1896}

The revision of the Berne convention provided for in art. XVII, which

was to be made according to the final protocol at a conference at Paris

to be called by the French government within from four to six years, was

not actually undertaken until 1896. When the signatory powers met in

conference at Paris, April 15 to May 4, 1896, they adopted an

"additional act," of four articles, which besides making verbal

amendments for clarification, substantially modified articles II, III,

V, VII, XII, XX, of the Berne convention and the first and fourth

numbers of the final protocol; and issued also an "interpretative

declaration" as to both the Berne convention and the final protocol, the

additional act and the interpretative declaration being sometimes cited

together as "the Paris acts."

{Sidenote: Paris Additional Act}

The Additional Act of Paris (art. I and II) included "posthumous works"

amongst protected works, replaced the privileges given to publishers by

a provision extending protection to authors not subjects of unionist

countries for works first published in one of those countries; extended

the protection of translations throughout the term of the original work,

but with the proviso that the right for any language should expire after

ten years unless the author had provided for a translation into that

language; specifically included serial novels published in periodicals,

and required indication of the source of articles reproduced from

periodicals. The right to seize piratical works was given to the

"competent authorities" of each country without specific reference to

importation. Withdrawal by denunciation was made applicable only to the

country withdrawing, leaving the convention binding upon all others.

It further provided (art. III) that the several countries of the Union

might accede to these additional acts separately, as might other

countries, and for ratification within a year and enforcement within

three months thereafter.

{Sidenote: Paris Interpretative Declaration}

The Declaration, simultaneously adopted, interpreting the convention of

Berne and the Paris additional act, declared (1) that protection depends

solely on accomplishment in the country of origin of the conditions and

formalities prescribed therein; (2) that "published works" (_oeuvres

publiees_) means works actually issued to the public (_oeuvres editees_)

in one of the Union countries--"consequently, the representation of a

dramatic or dramatico-musical work, the performance of a musical work,

the exhibition of works of art, do not constitute publication"; and (3)

that "the transformation of a novel into a play, or of a play into a

novel" comes under the protection provided.

{Sidenote: Ratification in 1897}

The Paris acts, as adopted May 4, 1896, were ratified September 9, 1897,

the declaration becoming effective immediately and the additional act

three months later. Both the additional act and the interpretative

declaration were ratified by Belgium, France, Germany, Haiti, Italy,

Luxemburg, Monaco, Montenegro, Spain, Switzerland and Tunis. Great

Britain ratified only the additional act and not the interpretative

declaration, while Norway, which had become a unionist country April 13,

1896, ratified only the interpretative declaration and not the

additional act. Thus from December 9, 1897, the Berne convention and the

Paris acts together constituted, with the exceptions noted, the

fundamental law of the International Copyright Union.

{Sidenote: Berlin conference, 1908}

A second conference for revision was called in 1908 by the German

government, and met at Berlin October 14 to November 14, resulting in

the signature on November 13, 1908, of a revised convention continuing

or reconstituting the International Copyright Union and replacing by

substitution the Berne convention and Paris acts in those states

accepting it by ratification. To this conference the German government

invited not only the signatory powers of the Union, then

fifteen,--Belgium, Denmark (which had acceded to the Union in 1903),

France, Germany, Great Britain, Haiti, Italy, Japan (1899), Luxemburg,

Monaco, Norway, Spain, Sweden (1904), Switzerland, and Tunis; but also

non-unionist countries, of which representatives were sent from twenty

countries,--Greece, Holland, Portugal, Roumania and Russia, China,

Persia and Siam, Liberia, the United States of America, Mexico,

Guatemala and Nicaragua, Argentina, Chile, Colombia, Ecuador, Peru,

Uruguay and Venezuela. The working committees were made up exclusively

from representatives of the signatory powers, only these countries

participating in the votes; active participation otherwise was confined

to representatives of countries expecting to become signatory powers,

Holland and Russia, while the other participants acted as observing

representatives or supplied information on request.

{Sidenote: United States' position}

The United States delegate, Thorvald Solberg, Register of Copyrights,

was present only to make observations and report, with no power to vote

or to take part in the discussions, as stated in the remarks for which,

on October 15, he was called upon, as follows:

"In 1885 and 1886, at the conferences convened to draft the convention

to create the International Union for the Protection of Literary and

Artistic Property, the United States was represented. At that time,

however, it was not deemed possible to send a plenipotentiary delegate,

nor could such a representative be sent to attend the first conference

of revision which met at Paris in 1896.

"When the present conference was arranged for--early in the year--the

German ambassador at Washington wrote to the Secretary of State of the

United States a letter explaining the purpose and scope of this

congress, inviting the Government of the United States to send

delegates. The ambassador's letter explained that, in addition to

delegates representing governments in the union, there would be present

representatives from a considerable number of non-union nations. It was

further stated that the attendance of such delegates from non-union

countries would be greeted with special pleasure. This because of the

conviction that whatever might be the final position taken by the

non-union countries, or their laws, in relation to copyright,

participation in the proceedings of this conference by such delegates

from non-union countries would at all events contribute to arouse and

increase interest in the Berne Union and its beneficial work.

"The German ambassador's letter further explained that the delegates

from non-union countries attending the conference would have full

freedom of action; that they might confine themselves to following the

discussions without taking any stand with regard to them, and that it

would be left to the discretion of the non-union governments as to

whether they would empower their delegates to join the Berne Union.

"The Government of the United States again finds it impracticable to

send a delegate authorized to commit the United States to actual

adhesion at this time to the Berne Convention. Nevertheless, it has been

felt that the representation of the United States, even within the

limitations indicated, might be beneficial: first, to indicate the

sympathy of our Government with the general purposes of the

International Copyright Union; second, to secure such information

regarding the proceedings of the conference as might prove valuable; and

third, to place (by means of such representation) at the disposal of the

conference authoritative knowledge as to the facts of copyright

legislation and procedure within the United States--information which it

is hoped may be of use to the members of the conference in their

deliberations."

{Sidenote: Welcome of non-unionist countries}

In response to the participation of non-unionist countries, Prof. L.

Renault of the French delegation, Chairman at the working sessions of

the conference, spoke of the wisely liberal practice of including

non-unionist countries in the invitation, recognized "the difficulty

which these countries find in passing through the halting places," which

the Union had itself gone through, and referred with especial

gratification to the representation of Holland, Russia and the United

States.

{Sidenote: Death of Sir Henry Bergne}

The closing days of the conference were darkened by the fatal illness of

Sir Henry Bergne, head of the British delegation, who expired on

November 15, the day after the adjournment of the conference, at the

successful culmination of work toward which he had given many years of

active and effective life.

{Sidenote: Berlin convention, 1908:}

{Sidenote: "Literary and artistic works" defined}

The Berlin convention included thirty articles, covering the same ground

as those of the Berne convention and the Paris acts, but somewhat

differently arranged, so that comparison is not quite direct. Article 1

reconstitutes the International Copyright Union. The expression

"literary and artistic works" is defined (arts. 2 and 3, covering

previous arts. IV-VI) as including "all productions in the literary,

scientific or artistic domain, whatever the mode or form of

reproduction, such as: books, pamphlets and other writings; dramatic or

dramatico-musical works; choregraphic works and pantomimes, the stage

directions ('_mise en scene_') of which are fixed in writing or

otherwise; musical compositions with or without words; drawings,

paintings; works of architecture and sculpture; engravings and

lithographs; illustrations; geographical charts; plans, sketches and

plastic works relating to geography, topography, architecture, or the

sciences. Translations, adaptations, arrangements of music and other

reproductions transformed from a literary or artistic work, as well as

compilations from different works, are protected as original works

without prejudice to the rights of the author of the original work." The

contracting countries are pledged to secure protection fully for these

categories and for photographic works and "works obtained by any process

analogous to photography" and to protect "works of art applied to

industry" so far as domestic legislation allows.

{Sidenote: Authors' rights}

{Sidenote: "Country of origin"}

The convention assures (art. 4, broadening art. II) to authors within

the jurisdiction of a unionist country for their works, whether

unpublished or published for the first time in one of the countries of

the Union, such rights in each other unionist country as domestic laws

accord to natives, as well as the rights accorded by the convention,

"not subject to any formality" and "independent of the existence of

protection in the country of origin," and regulated exclusively

according to the legislation of the country where the protection is

claimed. The "country of origin" is defined as "for unpublished works,

the country to which the author belongs; for published works, the

country of first publication" and for works published simultaneously in

several countries within the Union (as also in countries without the

Union), the unionist country granting the shortest term of protection.

Published works (_oeuvres publiees_) are again defined as works that

have been issued (_oeuvres editees_). "The representation of a dramatic

or dramatico-musical work, the performance of a musical work, the

exhibition of a work of art and the construction of a work of

architecture do not constitute publication."

{Sidenote: Broadened international protection}

Authors of a unionist country first publishing in another country of the

Union enjoy (art. 5) in the latter country the same rights as national

authors; and authors of a non-unionist country first publishing a work

in any unionist country enjoy (art. 6) in that country the same rights

as national authors and in the other Union countries the rights accorded

by the convention. This article greatly broadens the scope of the

convention, and by recognizing without formalities the rights of authors

of non-unionist countries, makes it of a world-wide inclusion for works

unpublished or first or simultaneously published within a unionist

country, to the full extent of domestic protection in each unionist

country, whether the country of origin does or does not grant

protection,--thus giving to citizens of the United States full

protection throughout unionist countries on the sole condition of first

or simultaneous publication within one of them.

{Sidenote: Term}

The convention takes the important step (art. 7) of providing for a

uniform term of "the life of the author and fifty years after his death"

in place of the respective national terms, with the proviso that if this

term should not be adopted uniformly by all the unionist countries,

duration shall be regulated by the law of the country where protection

is claimed, but cannot exceed the term in the country of origin. For

photographic and analogous works, posthumous, anonymous or pseudonymous

works, the term of protection is regulated by the law of the country

where protection is claimed, but may not exceed the term in the country

of origin. The exclusive right of translation is assured (art. 8) for

the entire term. Serial stories and other works published in newspapers

or periodicals (art. 9) may not be reproduced, but other newspaper

articles may be reproduced by another newspaper if reproduction has not

been expressly forbidden, on acknowledgment of the source, but

protection is not extended to news of the day or press information on

current topics. The right of extract is to be governed (art. 10) by

domestic legislation.

{Sidenote: Performing rights, etc.}

The public representation or performance of dramatic, dramatico-musical

or musical works, whether published or not (art. 11), and adaptation,

dramatization or novelization, etc. (art. 12), are fully included; and

this protection applies (art. 13) to the mechanical reproduction of

music, with the proviso that this application shall not be retroactive

and shall be regulated in each country by domestic legislation.

Infringing mechanical musical appliances may be seized on importation

even though lawful in the country from which they come. Cinematograph

and analogous productions of literary, scientific or artistic works are

included (art. 14) as subject to copyright protection.

{Sidenote: Other provisions}

The provisions as to the identification of author or publisher (art. 15)

of the work, seizure of infringing works (art. 16) and domestic

regulation and supervision (art. 17) are continued. The convention is

applied (art. 18) to existing works, provided they have not fallen into

the public domain in the country of origin or by expiration of the term

in the country where protection is claimed.

{Sidenote: National powers reserved}

It is specially provided (art. 19) that the convention does not prevent

"more favorable provisions" through domestic legislation "in favor of

foreigners in general"; and the right of any country to make special

treaties conferring more extended rights (art. 20) is continued.

{Sidenote: Organization provisions}

The provisions as to the International Bureau made in the Berne protocol

are continued (arts. 21-23), and also those as to revision (art. 24)

through conferences, to take place successively in the countries of the

Union. Accession of other countries (art. 25) and colonies (art. 26) is

to be made as heretofore, by notification through Switzerland, and it is

provided that acceding countries may adhere to the present convention or

those of 1886 or 1896. The present convention is made (art. 27) to

replace the Berne convention of 1886 and the Paris acts of 1896, but it

is specifically provided that the states signatory to the present

convention may declare their intention to remain bound by specific

provisions of previous conventions. The convention was to be ratified

(art. 28) not later than July 1, 1910, and was to take effect (art. 29)

three months thereafter, subject to withdrawal of any country by

denunciation on one year's notice, in which case the convention would

still remain in force for the other countries. It is specially provided

(art. 30) that the states which introduce into their legislation the new

term of protection shall notify the Swiss government accordingly, and

any renouncements of reservations shall be similarly notified.

{Sidenote: Ratification in 1910}

The Berlin convention was signed in that city November 13, 1908, by the

representatives of Germany, Belgium, Denmark, Spain, France, Great

Britain, Italy, Japan, Liberia, Luxemburg, Monaco, Norway, Sweden,

Switzerland, Tunis, the signatories being in alphabetical order

according to the French names of the countries. Ratifications were

exchanged in Berlin June 9, 1910, and the convention became operative

September 9, 1910. The convention was ratified without reservation by

Germany, Belgium, Spain, Haiti, Liberia, Luxemburg, Monaco and

Switzerland, and with reservations by France and Tunis (as to works of

applied art); Japan (as to exclusive right of translation and the public

performance of musical works); Norway (as to works of architecture,

periodical articles and retrospective action). Denmark and Italy have

not ratified the Berlin convention and therefore remain under the Berne

convention and Paris additional act and declaration. Great Britain will

be enabled under the new copyright act to accede to the Berlin

convention, but has hitherto remained under the Berne convention and the

Paris additional act, and Sweden, not having ratified, remains under the

Berne convention and the Paris declaration. Portugal acceded in 1911.

{Sidenote: Official organ}

The official documents of the International Copyright Union, and

especially accessions thereto, as well as current copyright information

from all parts of the world, are given in the _Droit d'Auteur_,

published monthly at Berne, under the able editorship of Prof. Ernest

Roethlisberger, from the Bureau of the Union, as its official organ.

{Sidenote: Montevideo congress, 1889}

Three years after the Berne convention, a congress of seven of the South

American republics was held at Montevideo, at which a convention with

reference to literary and artistic copyright was adopted January 11,

1889. The Montevideo convention has been ratified by Argentina (1894),

Bolivia (1903), Paraguay (1889), Peru (1889), and Uruguay (1892), though

not by Brazil and Chile, which were also participants in the congress.

It was in general on the lines of the Berne convention, though no

mention was made of unpublished works. A work first published or

produced in any one of the signatory countries and protected in that

country in accordance with its requirements, was also accorded in the

other countries the rights secured in the first country, but not for a

longer term than was given in the country where protection was claimed.

Dramatic works were specifically and playright impliedly protected.

Provision was made for the inclusion of countries outside of South

America, under which Belgium, France, Italy and Spain have become

parties to the convention, but only in relation with Argentina and

Paraguay.

{Sidenote: Pan American conferences}

In the winter of 1889-1890, the first Pan American conference was held

in Washington, and at this a committee, of which Andrew Carnegie was the

United States member, reported in favor of the adoption of the

Montevideo convention. No action seems to have been taken, but it is

probably this convention which is referred to as the first Pan American

this numeration, was that adopted at the Pan American conference in

Mexico City, signed January 27, 1902, at the same time with the patent

and trade-mark treaty. This copyright convention was modeled somewhat on

the lines of the Berne convention. At the Pan American conference in Rio

de Janeiro, 1906, what is spoken of as the third Pan American copyright

treaty, was adopted, and signed August 23, 1906, but this was really not

so much a new treaty, as a supplementary convention providing for the

development and regulation of international bureaus at Havana and Rio de

Janeiro, and its provisions were never put into operation. A fourth Pan

American copyright treaty, distinct from patent and trade-mark

protection, was adopted at the Pan American conference at Buenos Aires

in 1910 and signed August 11, 1910. The Mexico copyright convention was

not ratified by the Senate of the United States until 1908 and was

proclaimed by the President, April 9, 1908; the Rio convention has never

been accepted by the United States; the Buenos Aires convention,

replacing that of Mexico, was promptly approved by the U. S. Senate,

February 16, 1911, but is yet to be acted upon by the other countries.

{Sidenote: Mexico City conference, 1902}

At the Pan American conference held in Mexico City in 1902, the second

Argentina, Bolivia, Colombia, Costa Rica, Chile, the Dominican Republic,

Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua,

Paraguay, Peru, Uruguay and the United States, the delegates of

Nicaragua, Paraguay and the United States acting _ad referendum_.

{Sidenote: Mexico convention, 1902}

The first article of the Mexico convention formed the signatory states

into "a Union for the purpose of recognizing and protecting the rights

of literary and artistic property," which was defined (art. 2) as

including "books, manuscripts, pamphlets of all kinds, no matter what

subject they may treat of and what may be the number of their pages;

dramatic or melodramatic works; choral music and musical compositions,

with or without words, designs, drawings, paintings, sculpture,

engravings, photographic works; astronomical and geographical globes;

plans, sketches and plastic works relating to geography or geology,

topography or architecture, or any other science; and finally, every

production in the literary and artistic field, which may be published by

any method of impression or reproduction." Copyright was defined (art.

3) as the exclusive right to dispose of the work, to publish, to sell

and translate it or authorize translation, and to reproduce it in any

manner, in whole or in part.

{Sidenote: Indispensable condition}

The "indispensable" condition of copyright was (art. 4) a petition from

the author or his representative to the proper office, presumably of his

own government, with two deposit copies, and if he desired recognition

in other countries, with additional copies for each country designated,

which copies were to be forwarded to the respective governments

accompanied by a copy of the certificate of registration. Authors were

secured (art. 5) in each country the rights granted by their own

government within the term of protection of the country of origin--in

works published in installments, the term of copyright to date from the

publication of each part. The country of origin was defined (art. 6) as

that of first publication, or in case of simultaneous publication, that

having the shortest period of protection. The name or acknowledged

pseudonym on a work (art. 9) was accepted as indication of the author

except on proof to the contrary.

{Sidenote: Special provisions}

Authorized translations or those of non-protected works (art. 7) could

be copyrighted as original works, but not to the exclusion of other

versions of the latter. Newspaper articles might be reproduced (art. 8)

on acknowledgment of source and author's name, if given; addresses

before legislative assemblies, court or public meetings (art. 10) might

be freely reproduced, and extracts made (art. 11) in publications

devoted to public instruction or chrestomathy.

"Unauthorized indirect use" or reprint under pretext of annotations or

criticism (art. 12) was specified as unlawful reproduction. Pirated

copies might be seized (art. 13) in any of the countries, without

prejudice to other punishment of the infringer. Each country was to

exercise (art. 14) police power in its own jurisdiction. The convention

was to become effective for each signatory power three months after

communication of its ratification to the Mexican government, and any

participant might withdraw after one year's notice of denunciation, the

convention to remain binding on the other powers. The signatory powers

were to declare (art. 16) whether they would accept accession from

countries unrepresented at the conference.

{Sidenote: Ratification}

The Mexico convention of 1902 was ratified by Guatemala (1902), Salvador

(1902), Costa Rica (1902), Honduras (1904) and Nicaragua (1904), and by

the United States (1908), perhaps also by the Dominican Republic and

Cuba, and does not seem to be operative in the other countries whose

representatives signed the treaty.

{Sidenote: Rio de Janeiro conference 1906}

At the third Pan American conference, held at Rio de Janeiro, in 1906, a

convention was signed August 23, 1906, to protect patents of invention,

drawings and industrial models, trade-marks and literary and artistic

property, thus binding in one document patent and copyright protection.

This is usually referred to as the third Pan American treaty, but it has

not been accepted by the United States, partly because of objections to

patent provisions and the combination of copyright provisions with them.

{Sidenote: Rio provisions}

This Rio convention re-adopted (art. 1) the Mexico treaty, with

modifications as stated in the convention. These provided for two

international bureaus (art. 2) for the centralization of registrations

(art. 3), one at Havana for the United States, Mexico, Central American

states, Panama, Colombia and Venezuela, Cuba, Haiti and San Domingo, and

one at Rio de Janeiro for Brazil, Argentina and the other South American

states, both to have (art. 4) identical systems and books, and to

exchange monthly authenticated copies of documents, so that the two

should practically constitute one bureau. The proper bureau was to

receive (art. 5) from each country authenticated copies of its own

registrations of patents and copyrights for transmission (art. 6) to the

other countries, where they should be given full faith and credit,

unless the proper bureau be notified to the contrary within one year.

The registration in one country (art. 7) should have the same effect in

each other country, as if made in all, and the term of protection was

made that provided by the legislation of the country "where the rights

originated or have been recognized," or, if no term is specified, then

for patents fifteen years, for designs ten years, both subject to

renewals, and for literary and artistic copyright life and 25 years. The

expenses of the bureau were to be guaranteed (art. 8) by the several

countries in the same proportion as for the bureau of American Republics

(now called the Pan American Union) at Washington; the two bureaus were

placed under the protection of Cuba and Brazil under identical

regulations, made by concurrence of the two governments with the

approval of the other countries; and an additional registration fee,

equivalent to $5, collected in the country of original registration, was

to be equally divided for the maintenance of the two bureaus. The

bureaus were authorized (art. 9) to (1) collect and publish information,

(2) print an official review, (3) to advise the respective governments

of defects, (4) to arrange for future international conferences, (5) to

make yearly report, (6) to exchange publications with other

institutions, and (7) to act as cooperative agents for each of the

governments concerned. The convention was to become effective (art. 10)

on the establishment of one of the bureaus for such countries as should

accede to the new convention, the other countries remaining bound by the

former convention; and each of the bureaus was to be established (art.

11) as soon as two thirds of the countries in its own group should

ratify the convention, and the first bureau established might act

temporarily for the other countries. It was finally provided (art. 12)

that Brazil should be the intermediary for exchange of ratifications.

{Sidenote: Ratification}

The Rio convention of 1906 was ratified only by Guatemala (1907 and

1909), Salvador (1907), Nicaragua (1908) and Costa Rica (1908), and by

Chile (1910); and it never became effective.

{Sidenote: Buenos Aires conference and convention, 1910}

At the fourth Pan American conference, held at Buenos Aires in

1910,--twenty powers, including all the South American countries except

Bolivia, being represented,--the fourth copyright convention was signed

August 11, 1910. It undertakes to "acknowledge and protect the rights of

literary and artistic property," and includes (art. 2) with dramatic and

musical works those of a choregraphic character. It retains (art. 4) the

definition of the scope of copyright. The provision as to the indicated

author is continued (art. 5) in more precise language. It substitutes

for the previous cumbrous method the simple provision (art. 3) "the

acknowledgment of a copyright obtained in one State, in conformity with

its laws, shall produce its effects of full right in all the other

States without the necessity of complying with any other formality,

provided always there shall appear in the work a statement that

indicates the reservation of the property right." It continues (art. 6)

the Mexico provisions as to copyright duration. The country of origin is

further defined (art. 7) as "that of its first publication in America,"

and in case of simultaneous publication in several of the signatory

countries, then that having the shortest term of protection. It

specially provides (art. 8) that a work shall not acquire copyright

through subsequent editions. It continues also (art. 9) the provisions

for copyright in translations. It provides (art. 11) for the protection

of "literary, scientific, or artistic writings, ... published in

newspapers or magazines." But other articles may be freely reproduced,

on acknowledgment of the source, which, however, is not required for

"news and miscellaneous items published merely for general

information,"--the provisions as to extracts in journals for public

instruction or chrestomathy (art. 12) and those as to public addresses

(art. 10) subject, however, to the internal laws of each state, being

continued. The provisions as to unlawful reproduction (art. 13) are

continued, and seizure of pirated copies (art. 14), police powers (art.

15) and provisions for ratification (art. 16) are the same as in the

Mexico convention, except that the ratifications and denouncements are

to be communicated to the Argentine government. This treaty, approved by

the United States Senate, February 16, 1911, and signed by the

President, waits other ratification to become effective.

{Sidenote: Attorney-General's opinion on ratification}

{Sidenote: Relation with importation provisions}

The Mexico convention was signed by the United States delegates _ad

referendum_, and before submitting it to the Senate for ratification,

the President obtained through the Secretary of State an opinion from

the Department of Justice, as to any reason against its submission for

ratification, especially with reference to the act of 1891. Acting

Attorney-General Hoyt replied in a confidential report of June 3, 1902,

since made public, after quoting the prohibition of importation in

section 3 of the act of 1891: "In the convention now in question there

is no inhibition against such importations as are prohibited by said

section 3, unless it can be said that such convention is 'an

international agreement which provides for reciprocity in the granting

of copyrights, by the terms of which agreement the United States of

America may, at its pleasure, become a party to such agreement,' as

provided in section 13 of the same act. It is a matter of grave doubt

whether this convention, made by the United States originally, is such

an 'international agreement.' It is therefore quite probable that its

ratification would except the authors of the nations signing it from the

provisions of said section 3 of the act of March 3, 1891, leaving the

authors of other countries still subject to such provisions. Your

attention is directed to the fact that an affirmative answer to article

16 of the convention would also except from the provisions of said

section 3 all countries that might hereafter adopt said convention.

There appears to be no legal impediment to the ratification of this

convention, nor would it constitute a breach of faith toward other

countries; and in pointing out the probable effect of some of its

provisions I do not intend thereby to express or intimate an opinion

that it ought not to be ratified." The question of the relation between

treaty provisions and domestic legislation especially affects copyright

arrangements and has been the subject of discussion and a matter of

difficulty in England and other countries as well as in the United

States. The Senate did not act finally upon the Mexico convention until

1908, when it was duly ratified, and this precedent opened the way for

more prompt ratification of the Buenos Aires convention.

{Sidenote: United States international relations}

The United States, as a party only to the Pan American Union and not a

member of the International Copyright Union under the Berne-Berlin

conventions, has not secured for its citizens general rights of

such rights are secured only in the countries designated by Presidential

proclamation and according to the formalities of their domestic

legislation. It seems, however, that citizens of the United States may

obtain general protection throughout the unionist countries by

publishing in a unionist country simultaneously with first publication

in the United States, and thus coming under the protective provisions of

the Berlin convention. The Mexico convention permits citizens of the

United States to obtain copyright in other countries ratifying that

convention, by deposit at Washington of extra copies for transmission to

countries designated, with certified copy of the registration. When the

Buenos Aires convention is ratified by other powers nothing more will

then be required than the usual application and deposit at Washington

and notice of the reservation of rights, preferably in connection with

is the most comprehensive form.

{Sidenote: "Proclaimed" countries}

Under section 8 of the act of 1891, the President "proclaimed" from time

to time the existence of reciprocal relations with other countries,

which permitted their citizens to obtain copyright in the United States

under the act, and American citizens to obtain protection under their

respective copyright laws. The question of the _status_ of these

countries under the act of 1909 was solved by the proclamation of the

President on April 9, 1910, stating that "satisfactory evidence has been

received that in Austria, Belgium, Chile, Costa Rica, Cuba, Denmark,

France, Germany, Great Britain and her possessions, Italy, Mexico, the

Netherlands and her possessions, Norway, Portugal, Spain and

Switzerland, the law permits ... to citizens of the United States the

benefit of copyright on substantially the same basis as to citizens of

those countries," and proclaiming "that the citizens or subjects of the

aforementioned countries are and since July 1, 1909, have been entitled

to all the benefits of the said Act other than the benefits under

section 1, (_e_), thereof, as to which the inquiry is still

pending"--the exception being as regards mechanical music. To this list

of countries, Luxemburg was added by proclamation of June 29, 1910, and

Sweden by that of May 26, 1911.

{Sidenote: Mechanical music reciprocity}

Under date of December 8, 1910, the first proclamation with respect to

the international protection of mechanical music was made by the

President, declaring the existence of reciprocal relations with Germany.

Belgium, Luxemburg, and Norway were added by proclamation of June 14,

1911.

It may be repeated, to make the list complete, that by the ratification

in 1908 of the Mexico City convention of 1902, Guatemala, Honduras,

Nicaragua and Salvador, as well as Costa Rica, have reciprocal copyright

relations with the United States, making in all twenty-four countries

(including Japan under the treaties excepting translations, and China

under the limited provisions of the treaty of 1903) with which the

United States has international copyright relations.

XIX

THE INTERNATIONAL COPYRIGHT MOVEMENT IN AMERICA

{Sidenote: Initial endeavor in America, 1837}

Simultaneously with the earliest legislation for international copyright

among European states, there was a movement in the same direction in the

United States. In the Twenty-fourth Congress, February 2, 1837, Henry

Clay presented to the Senate an address of British authors asking for

Thomas Moore and fifty-five others, and was later supplemented by

additional signatures and by an American petition to the same effect.

{Sidenote: The British address}

The text of the address is as follows, the reference in paragraph seven

being to a letter by Dr. M'Vickar, printed in the New York _American_,

November 19, 1832:

"The humble address and petition of certain authors of Great Britain, to

the Senate and House of Representatives of the United States, in

Congress assembled, respectfully showeth--

"1. That your petitioners have long been exposed to injury in their

reputation and property, from the want of a law by which the exclusive

right to their respective writings may be secured to them in the United

States of America.

"2. That, for want of such law, deep and extensive injuries have, of

late, been inflicted on the reputation and property of certain of your

petitioners; and on the interests of literature and science, which ought

to constitute a bond of union and friendship between the United States

and Great Britain.

"3. That, from the circumstance of the English language being common to

both nations, the works of British authors are extensively read

throughout the United States of America, while the profits arising from

the sale of their works may be wholly appropriated by American

booksellers, not only without the consent of the authors, but even

contrary to their express desire--a grievance under which your

petitioners have, at present, no redress.

"4. That the works thus appropriated by American booksellers are liable

to be mutilated and altered, at the pleasure of the said booksellers, or

of any other persons who may have an interest in reducing the price of

the works, or in conciliating the supposed principles or prejudice of

purchasers in the respective sections of your union: and that, the names

of the authors being retained, they may be made responsible for works

which they no longer recognize as their own.

"5. That such mutilation and alteration, with the retention of the

authors' names, have been of late actually perpetrated by citizens of

the United States: under which grievance, your petitioners have no

redress.

"6. That certain of your petitioners have recently made an effort in

defence of their literary reputation and property, by declaring a

respectable firm of English publishers in New York to be the sole

authorized possessors and issuers of the works of the said petitioners;

and by publishing in certain American newspapers, their authority to

this effect.

"7. That the object of the said petitioners has been defeated by the act

of certain persons, citizens of the United States, who have unjustly

published, for their own advantage, the works sought to be thus

protected; under which grievance your petitioners have, at present, no

redress.

"8. That American authors are injured by the non-existence of the

desired law. While American publishers can provide themselves with works

for publication by unjust appropriation, instead of by equitable

purchase, they are under no inducement to afford to American authors a

fair remuneration for their labours: under which grievance American

authors have no redress but in sending over their works to England to be

published, an expedient which has become an established practice with

some of whom their country has most reason to be proud.

"9. That the American public is injured by the non-existence of the

desired law. The American public suffers, not only from the

discouragement afforded to native authors, as above stated, but from the

uncertainty now existing as to whether the books presented to them as

the works of British authors, are the actual and complete productions of

the writers whose names they bear.

"10. That your petitioners beg humbly to remind your Honours of the case

of Walter Scott, as stated by an esteemed citizen of the United States,

that while the works of this author, dear alike to your country and to

ours, were read from Maine to Georgia, from the Atlantic to the

Mississippi, he received no remuneration from the American public for

his labours; that an equitable remuneration might have saved his life,

and would, at least, have relieved its closing years from the burden of

debts and destructive toils.

"11. That your petitioners, deeply impressed with the conviction that

the only firm ground of friendship between nations, is a strict regard

to simple justice, earnestly pray that your Honours, the representatives

of the United States in Congress assembled, will speedily use, in behalf

of the authors of Great Britain, your power 'of securing to the authors

the exclusive right to their respective writings.'"

{Sidenote: Henry Clay report, 1837}

The British address was referred to a select committee, whose members

were Clay, Webster, Buchanan, Preston and Ewing, which reported

favorably a bill for international copyright. The report took high

ground in favor of the rights of authors:

"That authors and inventors have, according to the practice among

civilized nations, a property in the respective productions of their

genius, is incontestable; and that this property should be protected as

effectually as any other property is, by law, follows as a legitimate

consequence. Authors and inventors are among the greatest benefactors of

mankind.... It being established that literary property is entitled to

legal protection, it results that this protection ought to be afforded

wherever the property is situated.... We should be all shocked if the

law tolerated the least invasion of the rights of property, in the case

of merchandise, whilst those which justly belong to the works of authors

are exposed to daily violation, without the possibility of their

invoking the aid of the laws.... In principle, the committee perceive no

objection to considering the republic of letters as one great community,

and adopting a system of protection for literary property which should

be common to all parts of it."

{Sidenote: A prophecy of world union}

The address of British authors and the Clay report called forth a little

volume of "Remarks on literary property" by Philip H. Nicklin, a

Philadelphia publisher, printed by his own firm of "law booksellers" in

1838, and dedicated to Henry C. Carey, which, though somewhat caustic in

its criticisms of some of the arguments put forward by the British

authors, heartily favored international copyright. The volume, in fact,

contains a glowing prophecy of what was realized in large measure in the

convention of Berne a half century later, the more interesting as coming

from an American publisher, who was perhaps first to realize in thought

the world-wide possibilities of the movement then in its beginnings. He

suggested that Congress should empower the President to appoint

commissioners to meet in Europe with similar representatives from other

nations "to negociate for the enactment of a _uniform_ law of literary

property, and the extension of its benefits to all civilised nations. It

should be a new chapter of the _Jus Gentium_, and should be one law

(_iisdem verbis_) for all the enacting nations, extending over their

territories in the same manner as our law of copyright extends over the

territories of our twenty-six sovereign states; so that an entry of

in all the others."

{Sidenote: "One just law"}

"Public opinion has made such progress in the various civilized nations,

as would justify a great movement in favour of establishing a universal

republic of letters; whose foundation shall be one just law of literary

property embracing authors of all nations, and being operative both in

peace and war. Besides the great impulse that would be given by such a

law, to the improvement of literature and intellectual cultivation, the

fellowship of interest thus created among the learned men throughout the

world, would in time grow into a bond of national peace. Authors would

soon consider themselves as fellow-citizens of a glorious republic,

whose boundaries are the great circles of the terraqueous globe; and

instead of lending their talents for the purpose of exasperating

national prejudice into hostile feeling, to further the views of

ambitious politicians, they would exert their best energies to cultivate

charity among the numerous branches of the Human family, to rub off

those asperities which the faulty legislation of the dark ages has

bequeathed to the present generation, and to extend the blessings of

christianity to the ends of the earth."

{Sidenote: Clay bills, 1837-42}

The Clay report, presented February 16, 1837, was accompanied by a bill

drawn by Clay, extending copyright to British and French authors for

works thereafter published, on condition of the issue of an American

edition simultaneously with the foreign edition or within one month

after deposit of the title in America, but it never came to a final

vote, though reintroduced by Clay in successive Congresses December 13,

1837, December 17, 1838, January 6, 1840, and January 6, 1842. In 1840,

January 8, the bill was reported back from the Judiciary Committee

without recommendation or approval. The bill was also introduced into

the House of Representatives by John Robertson, July 7, 1838, and by J.

L. Tillinghast, June 6, 1840, but here also there was no action.

{Sidenote: Palmerston invitation, 1838}

An invitation was extended by Lord Palmerston in 1838 for the

cooperation of the American government in an international arrangement

with Great Britain, but nothing came of it.

{Sidenote: Efforts 1840-48}

Dr. Francis Lieber, a well-known publicist, addressed to Senator

Preston, in 1840, a letter "On international copyright," prepared in

cooperation with George Palmer Putnam, and issued in pamphlet form by

the house of Wiley & Putnam. Charles Dickens's tour in 1841 stimulated

interest in the subject, and there were high hopes of some result. In

1843 Mr. Putnam procured the signatures of ninety-seven publishers,

printers, and binders to a petition which was presented to Congress,

setting forth that the absence of international copyright was "alike

injurious to the business of publishing and to the best interests of the

people." A counter-memorial from Philadelphia objected that

international copyright "would prevent the adaptation of English books

to American wants." No result came from these petitions, nor from one

presented in 1848 by William Cullen Bryant, John Jay, George P. Putnam,

and others.

{Sidenote: Everett treaty, 1853}

In 1852 a petition for international copyright, signed by Washington

Irving, James Fenimore Cooper and others, was presented to Congress; and

in 1853 Edward Everett, then Secretary of State, negotiated through the

American Minister in London, John F. Crampton, a treaty providing simply

that authors entitled to copyright in one country should be entitled to

it in the other, on the same conditions and for the same term. This

treaty was laid before the Senate in a message from President Fillmore,

February 18, 1853. The Committee on Foreign Relations of the Senate,

through Charles Sumner, reported the Everett treaty favorably, but it

was tabled in Committee of the Whole. Five New York publishers addressed

a letter to Mr. Everett, supporting a convention, providing the work

should be registered in the United States before publication abroad,

issued here within thirty days after publication abroad, and wholly

manufactured in this country. It was in this year that Henry C. Carey

published his famous "Letters on international copyright," in which he

held that ideas are the common property of society, and that copyright

is therefore indefensible. Several remonstrances were also presented

against the treaty from citizens of different states. The next year the

amendatory article to the Everett treaty was laid before the Senate in a

message from President Pierce of February 23, 1854, but no action

resulted.

{Sidenote: Morris bills, 1858-60}

In the Thirty-fifth Congress in 1858, Edward J. Morris, of Pennsylvania,

introduced into the House of Representatives a bill on the basis of

remanufacture by an American publisher within thirty days of publication

abroad, but it does not seem to have been considered, though it was

reintroduced by him in 1860.

{Sidenote: International Copyright Association, 1868}

The matter slumbered until 1868--after Dickens's second visit in

1867--when a committee consisting of George P. Putnam, S. Irenaeus Prime,

Henry Ivison, James Parton, and Egbert Hazard issued an appeal for

"justice to authors and artists," calling a meeting, which was held

under the presidency of William Cullen Bryant, April 9, 1868. An

International Copyright Association was then organized, with Mr. Bryant

as president, George William Curtis as vice-president and E. C. Stedman

as secretary, whose primary object was "to promote the enactment of a

just and suitable international copyright law for the benefit of authors

and artists in all parts of the world." A memorial to Congress, asking

early attention for a bill "to secure in all parts of the world the

right of authors," but making no recommendations in detail, was signed

by one hundred and fifty-three persons, including one hundred and one

authors and nineteen publishers.

{Sidenote: Baldwin bill and report, 1868}

In the Fortieth Congress, in accordance with instructions to the

Committee on the Library, moved by Samuel M. Arnell of Tennessee,

January 16, 1868, to report on international copyright "and the best

means for the encouragement and advancement of cheap literature and the

better protection of authors,"--a bill was introduced in the House,

February 21, by J. D. Baldwin of Massachusetts, which provided for

American citizen. The Committee's report said: "We are fully persuaded

that it is not only expedient, but in a high degree important to the

United States to establish such international copyright laws as will

protect the rights of American authors in foreign countries and give

similar protection to foreign authors in this country. It would be an

act of national honor and justice in which we should find that justice

is the wisest policy for nations and brings the richest reward." The

bill was, however, recommitted and never more heard of.

{Sidenote: Clarendon treaty, 1870}

In 1870, what has since been known as the Clarendon treaty was proposed

to the American government by Lord Clarendon on behalf of the British

government, through Sir Edward Thornton, then British Minister at

Washington. This was modeled on the treaties existing between Great

Britain and other European nations, and provided that an author of

either country should have full protection in the other country to the

extent of its domestic law, on the sole condition of registration and

deposit in the other country within three months after first publication

in the country in which the work first appeared, the convention to

continue in force for five years, and thence from year to year, unless

twelve months' notice of termination were given. This was later

criticised in Harper & Brothers' letter of November 25, 1878, as a

scheme "more in the interest of British publishers than either of

British or American authors," on the ground that British publishers

would secure American with British copyright, and give no opportunity to

American houses to issue works of English authors.

{Sidenote: Cox bill and resolution, 1871}

The next year the following resolution, offered by S. S. Cox, was passed

by the House, December 18, 1871:

"_Resolved_, That the Committee on the Library be directed to consider

the question of an international copyright, and to report to this House

what, in their judgment, would be the wisest plan, by treaty or law, to

secure the property of authors in their works, without injury to other

rights and interests; and if in their opinion Congressional legislation

is the best, that they report a bill for that purpose."

Mr. Cox had himself presented in the Forty-second Congress, December 6,

1871, a bill for international copyright on a basis of reciprocity,

providing foreign works should be wholly manufactured in the United

States and published by American citizens, and be registered, deposited

and arrangements for such publication made within three months of first

publication in the foreign country. This bill was supported in Committee

of the Whole by speeches from Archer Stevenson, Jr., of Maryland, and J.

B. Storm, of Pennsylvania, but opposed by William D. Kelley, of

Pennsylvania.

{Sidenote: The Appleton proposal, 1872}

Mr. Cox's resolution was acted upon in 1872 by the new Library

Committee, which invited the cooperation of authors, publishers, and

others interested in framing a bill. At meetings of New York publishers,

January 23 and February 6, 1872, a bill prepared by W. H. Appleton and

accepted by A. D. F. Randolph, Isaac E. Sheldon, and D. Van Nostrand, of

a committee, was approved by a majority vote. It provided for copyright

on foreign books issued under contract with an American publisher,

"wholly the product of the mechanical industry of the United States,"

and registered within one month and published within three months from

the foreign issue, stipulating that if a work were out of print for

three months the copyright should lapse. This was in line with a letter

printed by W. H. Appleton in the London _Times_, October, 1871, denying

that there was any disposition in the United States to withhold justice

from English authors, but objecting to any "kind of legal saddle for the

English publisher to ride his author into the American book-market"; in

response to which Herbert Spencer, John Stuart Mill, Froude, Carlyle,

and others had signed a memorial to Lord Granville expressing a

willingness to accept a copyright on the condition of confining American

publishers. Mr. Appleton's bill was opposed in a minority report by

Edward Seymour, of the Scribner house, on the ground that it was "in no

sense an international copyright law, but simply an act to protect

American publishers"; that the desired "protection" could be evaded by

English houses through an American partner; and that the act was

objectionable in prohibiting stereos, in failing to provide for

cyclopaedias, and in enabling an American publisher to exclude revised

editions.

{Sidenote: Philadelphia protest, 1872}

A meeting of Philadelphia publishers, January 27, 1872, opposed

international copyright altogether, in a memorial declaring that

"thought, when given to the world, is, as light, free to all"; that

could get American copyright by becoming an American citizen; and that

"the good of the whole people and the safety of republican institutions"

would be contravened by putting into the hands of foreign authors and

"the great capitalists on the Atlantic seaboard" the power to make books

high.

{Sidenote: The Bristed proposal, 1872}

The Executive Committee of the Copyright Association met in New York,

February 2, 1872, and put forward Charles Astor Bristed's bill securing,

after two years from date of passage, to citizens of other countries

granting reciprocity, all the rights of American citizens.

{Sidenote: Kelley resolution, 1872}

Probably as an outcome of the Philadelphia meeting, William D. Kelley,

of Pennsylvania, introduced into the House, February 12, 1872, and

caused to be referred to the Library Committee, the following

resolution: "Whereas it is expedient to facilitate the reproduction here

of foreign works of a higher character than that of those now generally

reprinted in this country; and whereas it is in like manner desirable to

facilitate the reproduction abroad of the works of our own authors; and

whereas the grant of monopoly privileges, in case of reproduction here

or elsewhere, must tend greatly to increase the cost of books, to limit

their circulation, and to increase the already existing obstacles to the

dissemination of knowledge: Therefore, _Resolved_, That the Joint

Committee on the Library be, and it hereby is, instructed to inquire

into the practicability of arrangements by means of which such

reproduction, both here and abroad, may be facilitated, freed from the

great disadvantages that must inevitably result from the grant of

monopoly privileges such as are now claimed in behalf of foreign authors

and domestic publishers."

{Sidenote: Congressional hearings}

{Sidenote: Beck-Sherman bill, 1872}

The Library Committee gave several hearings on the subject, February 12

and later, and among other contributions to the discussion received a

letter from Harper & Brothers taking ground that "any measure of

international copyright was objectionable because it would add to the

price of books, and thus interfere with the education of the people";

and a suggestion from John P. Morton, of Louisville, to permit general

republication on payment of a ten per cent royalty to the foreign

author. The same suggestion, providing for five per cent royalty, as

brought forward by John Elderkin, was introduced, in a bill, February

21, 1872, by James B. Beck of Kentucky, in the House, and John Sherman

of Ohio, in the Senate.

{Sidenote: Morrill report, 1873}

The Committee, in despair over these conflicting opinions, presented the

celebrated Morrill report of February 7, 1873, Senator Lot M. Morrill

being the chairman, including a tabular comparison of the prices of

American and English books. It said that "there was no unanimity of

opinion among those interested in the measure," and concluded:

"In view of the whole case, your committee are satisfied that no form of

international copyright can fairly be urged upon Congress upon reasons

of general equity, or of constitutional law; that the adoption of any

plan for the purpose which has been laid before us would be of very

doubtful advantage to American authors as a class, and would be not only

an unquestionable and permanent injury to the manufacturing interests

concerned in producing books, but a hindrance to the diffusion of

knowledge among the people, and to the cause of universal education;

that no plan for the protection of foreign authors has yet been devised

which can unite the support of all or nearly all who profess to be

favorable to the general object in view; and that, in the opinion of

your committee, any project for an international copyright will be found

upon mature deliberation to be inexpedient."

{Sidenote: Banning bill, 1874}

This was decidedly a damper to the cause, and the movement lapsed for

some years, a bill submitted to the House on February 9, 1874, by Henry

B. Banning of Ohio, extending to authors the protection given to

inventors, on a basis of international reciprocity, attracting meanwhile

little attention.

{Sidenote: The Harper proposal and draft, 1878}

The question rested until 1878, when, under date of November 25, Harper

& Brothers addressed a letter to William M. Evarts, Secretary of State,

suggesting that previous failures were due "to the fact that all such

propositions have originated from one side only, and without prior joint

consultation and intelligent discussion," reiterating "that there was no

disinclination on the part of American publishers to pay British authors

the same as they do American authors," and that "American publishers

simply wished to be assured that they should have the privilege of

printing and publishing the books of British authors"; indicating "the

likelihood of the acceptance by the United States of a treaty which

should recognize the interests of all parties"; and proposing a

conference or commission of eighteen Americans and Englishmen--three

authors, three publishers and three publicists to be appointed by each

side, by the American Secretary of State and the British Secretary for

Foreign Affairs--which should consider and present the details of a

treaty.

{Sidenote: A suggested basis}

They also presented, as a suggested basis of action, what came to be

known as the "Harper draft," a modification of the Clarendon treaty,

providing that there should be registration in both countries _before_

publication in the country of origin; that international registration

should be in the name of the author: if a _citizen_ of the United

States, at Stationers' Hall, London; if a _subject_ of her Majesty, at

the Library of Congress, Washington; and that "the author of any work of

literature manufactured and published in the one country shall not be

entitled to copyright in the other country unless such work shall be

also manufactured and published therein, by a subject or citizen

thereof, within three months after its original publication in the

country of the author or proprietor; but this proviso shall not apply to

paintings, engravings, sculptures, or other works of art; and the word

'manufacture' shall not be held to prohibit printing in one country from

stereotype plates prepared in the other and imported for this purpose."

{Sidenote: Approval of the Harper draft}

This draft was approved by fifty-two leading American authors, including

Longfellow, Holmes, Emerson, and Whittier, in a memorial dated August,

1880. The American members of the International Copyright Committee,

appointed by the Association for the Reform and Codification of the Law

of Nations, John Jay, James Grant Wilson and Nathan Appleton, also

memorialized the Secretary of State, under date of February 11, 1880, in

favor of this general plan, specifying "within from one to three months"

as the manufacturing limit. It was also approved by the great body of

American publishers, although the Putnam, Scribner, Holt and Roberts

firms in signing took exception to certain of the restrictions,

especially to the time limit of three months. George Haven Putnam set

forth the views of his house in a paper before the New York Free Trade

Club, January 29, 1879, afterward printed as _Economic Monograph_ no.

XV., "International copyright considered in some of its relations to

ethics and political economy." In this he suggested simultaneous

registration in both countries, republication within six months, and

restriction of copyright protection here for the first ten years of the

term to books printed and bound in the United States and published by an

American citizen.

An interesting series of replies from American authors, publishers,

etc., as to methods for international copyright, to queries from the

_Publishers' Weekly_ will be found in v. 15, commencing with no. 7,

February 15, 1879.

{Sidenote: Granville negotiations, 1880}

The "Harper draft" was submitted in September, 1880, by James Russell

Lowell, then American Minister at London, to Earl Granville, who

replied, March, 1881, that the British government favored such a treaty,

but considered an extension of the republication term to six months

essential, and to twelve months much more equitable. In the same month

the International Literary Association adopted a report favoring an

agreement, but protesting against the manufacturing clause and time

limit. This position was also taken at several meetings of London

publishers, and F. R. Daldy was sent to America to further the English

view. Sir Edward Thornton, British Minister at Washington, was

instructed to proceed to the consideration of the treaty, provided the

term for reprint could be extended, and both President Garfield and

Secretary Blaine were understood to favor the completion of a treaty.

With the death of Garfield the matter ended for the time.

{Sidenote: Robinson and Collins bills, 1882-83}

A bill dealing with the whole question of copyright, domestic and

foreign, was introduced March 27, 1882, by W. E. Robinson of New York,

and December 10, 1883, another copyright bill was introduced by P. A.

Collins of Massachusetts, but neither emerged from the Committee on

Patents, to which they were referred.

{Sidenote: American Copyright League}

{Sidenote: Dorsheimer bill, 1884}

{Sidenote: Criticisms and changes}

The question came to the front again in 1884. A new copyright

association, the American Copyright League, had been organized in 1883,

chiefly through the efforts of George P. Lathrop, Edward Eggleston, and

R. W. Gilder, and there was a general revival of interest in

international copyright. On January 9, 1884, William Dorsheimer, of New

York, introduced into the House his bill for international copyright,

which provided for the extension of copyright to citizens of countries

granting reciprocal privileges, so soon as the President should issue

his proclamation accepting such reciprocity, for twenty-five years, but

terminable earlier on the death of the author. This bill was the

occasion of a general discussion. The Copyright League addressed a

letter to Mr. Dorsheimer urging the modification of the above

limitations, and it was particularly pointed out that the confining of

insecure. The League also addressed a letter to the Secretary of State,

urging the completion of a treaty with Great Britain, to which F. T.

Frelinghuysen replied, January 25, 1884, that while the negotiation as

to the Harper draft had not been interrupted, he thought the object

might be attained by a simple amendment to our present copyright law,

based on reciprocity, after which a simple convention would suffice to

put the amendment in force. Mr. Dorsheimer's bill was referred to the

House Committee on the Judiciary, and reported favorably, with

amendments extending the copyright term to twenty-eight years, without

regard to the death of the author, with renewal for fourteen years. The

amended bill also provided that such copyright should cease in case

reciprocity was withdrawn by the other country; that there should be no

domestic copyright law should, as far as applicable, extend also to

foreign copyrights. On the 19th of February Mr. Dorsheimer moved to make

his bill the special order for February 27, but his motion failed of the

necessary two-thirds vote, 155 voting aye, 98 nay and 55 not voting.

There was considerable opposition on the part of those who insisted upon

the remanufacture of foreign books in this country, and Mr. Dorsheimer

privately expressed himself as willing to accept, although not willing

to favor, amendments in that direction if they were necessary to insure

the passage of the bill.

{Sidenote: American publishers' sentiment}

A circular letter of inquiry sent out by the _Publishers' Weekly_ early

in 1884, showed a general desire on the part of American publishers in

favor of international copyright. The replies were summarized in v. 25

from March, 1884. Of fifty-five leading publishers who answered,

fifty-two favored and only three opposed international copyright. Out of

these, twenty-eight advocated international copyright pure and simple;

fourteen favored a manufacturing clause; the others did not reply on

this point. Congress adjourned, however, without taking definite action.

{Sidenote: Hawley bill, 1885}

President Arthur, in his message of December, 1884, put himself on

record as favoring copyright on the basis of reciprocity. A bill brought

forward in the _Publishers' Weekly_ of December 6, 1884, was intended by

a form admitting of easy amendment, to facilitate the passage of some

kind of bill extending the principle of copyright to citizens of foreign

countries under limitations set forth in subsequent sections of the

bill. The Dorsheimer bill was reintroduced by W. E. English of Indiana,

January 5, 1885, and on January 6 Senator Hawley introduced a general

bill into the Senate. This latter, which covered all copyright articles,

was understood to be favored by the Copyright League; it extended

books or other works published after the passage of the bill, by

repealing those parts of the Revised Statutes confining copyright to

"citizens of the United States or residents therein." No action was

taken, however, on either the Dorsheimer or the Hawley bill.

{Sidenote: Chace bill, 1886}

In his first annual message, 1885, President Cleveland referred

favorably to the negotiations at Berne, and with the opening of the

Forty-ninth Congress two bills were introduced into the Senate, that of

Senator Hawley, December 7, 1885, being essentially his bill of the

previous year, and that of Senator Chace, January 21, 1886, a new bill,

based on a plan put forward some years previously by Henry C. Lea, and

now supported by the Typographical Unions and other labor organizations.

The Hawley bill was on a simple basis of reciprocity; the Chace bill

required registry within fifteen days and deposit of the best _American_

edition within six months from publication abroad, at a fee of $1, to be

used in printing a list of copyright books for customs use, the

prohibition of importations and the voiding of copyright when the

American manufacturer abandons publication. The American Copyright

League, of which James Russell Lowell was president and Edmund Clarence

Stedman vice-president, favored the Hawley bill, which was practically a

modification of the Dorsheimer bill, and it was introduced into the

House by John Randolph Tucker of Virginia, January 6, 1886.

{Sidenote: Congressional hearings, 1886}

Hearings were held for four days by the Senate Committee on Patents on

January 28, 29, February 12, and March 11, 1886, at which Mr. Lowell,

Mr. Stedman, "Mark Twain" and others appeared on behalf of international

the following terms: "The undersigned American citizens who earn their

living in whole or in part by their pen, and who are put at disadvantage

in their own country by the publication of foreign books without payment

to the author, so that American books are undersold in the American

market, to the detriment of American literature, urge the passage by

Congress of an International Copyright Law, which will protect the

rights of authors, and will enable American writers to ask from foreign

nations the justice we shall then no longer deny on our own part." The

memorial was presented to Congress in facsimile of the signatures of the

authors and was reproduced in that form in the Bowker-Solberg volume on

{Sidenote: Mr. Lowell's epigram}

It was at this time that Mr. Lowell wrote his famous quatrain on

"International copyright," which presented effectively the fundamental

argument:

"In vain we call old notions fudge,

And bend our conscience to our dealing;

The Ten Commandments will not budge,

And stealing will continue stealing."

On May 21, 1886, the Committee on Patents presented a report to the

Senate, favoring the Chace bill, but no action resulted.

{Sidenote: President Cleveland's second message, 1886}

In President Cleveland's annual message December 6, 1886, at the opening

of the second session, he called the attention of Congress to the fact

that "the drift of sentiment in civilized communities toward full

recognition of the rights of property in the creation of the human

intellect has brought about the adoption by many important nations of an

International Copyright Convention, which was signed at Berne 18th of

September, 1885.... I trust the subject will receive at your hands the

attention it deserves, and that the just claims of authors, so urgently

pressed, will be duly heeded." But the Congress adjourned without

heeding them.

{Sidenote: Campaign of 1887}

Senator Chace reintroduced his bill into the Fiftieth Congress, December

12, 1887. In the same month there was organized the American Publishers'

Putnam as secretary, and from that time forward the authors' and

publishers' leagues acted in close cooperation. Copyright associations

were formed in Boston, Chicago and elsewhere, to influence Congress and

the public; Henry van Dyke, especially by his address on "The national

sin of piracy," and other clergymen helped to emphasize the moral issue,

and authors' readings held in New York, Washington and elsewhere brought

the question widely to public notice and helped to raise funds for the

campaign. During this period, R. U. Johnson, associate editor of the

_Century_ magazine, who had been treasurer of the Authors' League,

became its secretary, and throughout the campaigns ending in 1891 and

1909, had the working oar. The Typographical Unions, represented by John

Louis Kennedy and James Welsh, gave support to the bill conditioned on

the acceptance of the type-setting clause, and the opposition to it came

chiefly from Gardiner G. Hubbard and certain legal representatives of

unnamed clients.

{Sidenote: Senate passage of Chace bill, 1888}

{Sidenote: Bryce bill, 1888}

The Chace bill, modified to require printing from type set or plates

made within the United States and to prohibit the importation of

foreign-made editions, passed the Senate, Senators Chace, Hawley, Hoar

and O. H. Platt of Connecticut being foremost in its support, by vote of

35 to 10, May 9, 1888. It had been introduced into the House by W. C.

P. Breckinridge of Kentucky, March 19, and favorably reported by the

Judiciary Committee, April 21, 1888. A bill which had been introduced by

Lloyd S. Bryce of New York, January 16, and referred to the Committee on

Patents, was favorably reported by that Committee with amendment

September 13, 1888. But the Mills tariff bill and other circumstances

blocked the way, and the Fiftieth Congress adjourned without action by

the House.

{Sidenote: President Harrison's message, 1889}

{Sidenote: Simonds bill, 1890}

{Sidenote: Simonds report, 1890}

President Harrison, in his first annual message, December 3, 1889, to

the Fifty-first Congress, said, "The subject of an international

my predecessors. The enactment of such a law would be eminently wise and

just." Senator Chace having resigned his seat, Senator O. H. Platt

became chairman of the Committee on Patents and the chief advocate of

the Chace bill, which he reintroduced December 4, 1889. In the House it

was again introduced by Mr. Breckinridge on January 6, 1890, and

referred to the Judiciary Committee, which made a favorable report,

prepared by G. E. Adams of Illinois February 15, 1890. It was also

introduced on the same day by Benjamin Butterworth of Ohio, as a

Republican, and referred to the Committee on Patents, of which he was

chairman. A third bill was also introduced on January 6, by W. E.

Simonds of Connecticut, amending the patent and trade-mark acts with an

incidental reference to copyright. Mr. Simonds presented a favorable

report from the Committee on Patents February 18, but no action was

taken on this report. The main bill was, however, reported from the

Judiciary Committee by Mr. Adams, and on motion of William McKinley of

Ohio, was made the special order for May 2, when it was debated, with

amendments introduced by Mr. Adams and defeated on the third reading by

a vote of 99 to 125. The bill was reintroduced, however, by Mr. Simonds

with the inclusion of a reciprocity clause, May 16, 1890, and on June 10

the Committee on Patents through Mr. Simonds presented a strong report

with a substitute bill, essentially the same. The Simonds report set

forth that aside from "practical reasons" for the bill, "it is a

sufficient reason that an author has a natural exclusive right to the

thing having a value in exchange which he produced by the labor of his

brain and hand. No one denies and everyone admits that all men have

certain natural rights which exist independently of all written

statutes." And in respect to international protection, the report said

"the United States of America must give in its adhesion to international

report is printed in full and a detailed account of the campaign for

this bill is given in G. H. Putnam's "The question of copyright." On

December 3, 1890, the bill was again voted upon by the House and

received a vote of 139 to 95 on its final passage.

{Sidenote: Senate debate, 1891}

In the Senate there was a notable debate lasting six days, February 9,

12-14, 17-18, 1891, in which Senators Sherman and Carlisle championed an

amendment permitting the importation of authorized foreign editions

which was opposed by the Typographical Unions as violating the

manufacturing clause, and by authors and publishers as a restriction on

authors' rights of control. Senator Frye on February 9, 1891, advocated

an amendment extending the manufacturing clause beyond books to include

maps, charts, dramatic or musical compositions, engravings, cuts,

prints, photographs, chromos and lithographs. With these and other

amendments, the bill passed the Senate 36 to 14, February 18, 1891. On

February 28, 1891, the House voted 128 to 64 non-concurrence in the

Senate amendments, and a Conference Committee was appointed.

{Sidenote: Passage of act of March 4, 1891}

This first Conference Committee, reporting on March 2, 1891, disagreed

on the Sherman amendment, and accepted the other Senate amendments; the

report was accepted by the House, 139 to 90, on March 2, 1891. The

Senate, on March 3, refused by a vote of 33 to 28 to recede from the

Sherman amendment, and a second Conference Committee was appointed. This

second Conference Committee modified the Sherman amendment, and after an

all-night session the copyright bill was passed, 127 to 77, by the

House, March 3, and was also passed, 27 to 18, by the Senate at half

past two in the morning, March 4, 1891.

The bill as passed was in the form of amendments to the Revised

Statutes, omitting the limitation to citizens or residents of the United

States, confining copyright, in the case of a book, photograph, chromo

or lithograph, to works of which the deposit copies should be "printed

from type set within the limits of the United States, or from plates

made therefrom, or from negatives or drawings on stone, made within the

limits of the United States or from transfers made therefrom," and

extending copyright to citizens of a foreign country only when such

country protects American citizens "on substantially the same basis as

its own citizens," or is a party to international arrangements, as

determined by proclamation of the President.

{Sidenote: Approval by President Harrison}

The signature of President Harrison was promptly affixed before the

close of the legislative day, and the United States at last, though in a

restricted form, accepted international copyright after an exciting and

dramatic contest, which began more than half a century before. The bill

became effective July 1, 1891.

{Sidenote: Review of the publishing situation}

There had been a continuous growth in the United States, though

displayed somewhat intermittently, of an active sentiment in favor of

international copyright. For some years the question was less insistent,

from the practical point of view, because of what was called "the

courtesy of the trade," by which a publisher who was the first to

reprint an English work was not disturbed by rival editions of that and

of succeeding works by the same author. Under this custom, the leading

American publishers voluntarily made payments to foreign authors, in

many cases the same ten per cent paid to American authors, and reaching

in one case of "outright" purchase of "advance sheets" $5000, though

there was no protection of law for the purchase. American and English

works then competed on much the same terms. In 1876 the cheap "quarto

libraries" were started, reprinting an entire English novel, though on

poor paper and often in dangerously poor type, for 10, 15, or 20 cents.

They presently obtained the advantage, by regular issue (one "library"

at one time issuing a book daily, others weekly), of the low postal

rates for periodicals, of two cents a pound, and thus obtained a further

advantage over books by American authors. These quartos gradually gave

way to the "pocket edition," in more convenient shape, but not always in

better print, at 20 or 25 cents. The sales of corresponding American

books had meanwhile definitely fallen.

{Sidenote: Lack of unified policy}

{Sidenote: Compromise of 1891}

The history of the movements for international copyright in America

shows that there had been no continuous and well-defined policy on the

part of the government authorities, or of publishers, or of authors.

While authors almost unanimously, and publishers generally, favored

international copyright, the division lines as to method were not

between authors and publishers, but between some authors and other

authors, and between some publishers and other publishers. There were

those, in both classes, who objected to any bill which did not

acknowledge to the full the inherent rights of authors, by extending the

provisions of domestic copyright to any author of any country, without

regard to other circumstances. There were others, at the other extreme,

who opposed international copyright unless it was restricted to books

manufactured in this country, issued simultaneously with their

publication abroad, and of which the importation of other than the

American copies was absolutely prohibited. The act of 1891 was finally

passed with the assent of the advocates of authors' rights who were

willing to waive the abstract principle in favor of any moderate measure

which should be at least a first step of recognition, and which might

justify by its results, even to the opponents of international

{Sidenote: Need of general revision}

While the act of 1891 was unsatisfactory to the friends of copyright,

who desired rather that the United States might grant unrestricted

international copyright and become a signatory power in the convention

of Berne, it was thought fair and right not to attempt broader

legislation for some years. Copyright legislation had become, however,

confused and uncertain in the multiplicity of statutes, and the need of

revision was emphasized in annual and special reports by Thorvald

Solberg, an expert in copyright and skilled bibliographer, who had been

appointed Register of Copyrights on the creation of that office in 1897

with the approval of the Librarian of Congress, Herbert Putnam, who had

been appointed in 1899. In 1903 the Register of Copyrights presented a

special report on copyright legislation which was made part of the

report of the Librarian of Congress for 1903, and accompanied by a list

of all copyright statutes by the original states and by the United

States, the text of the revised statutes with notations of later

provisions and a list of foreign copyright laws in force, which three

documents were also published as separate pamphlets.

{Sidenote: Ad interim copyright act, 1905}

In 1905, March 3, an act was passed granting _ad interim_ protection for

one year to works in a foreign language published in a foreign country,

pending manufacture in America within one year of the original work or a

translation thereof. This protection was conditioned on the deposit

within thirty days from publication in a foreign country of a copy of

the foreign edition bearing copyright notice and a reservation in the

following form: "Published____, 19__. Privilege of copyright in the

United States reserved under the Act approved March 3, 1905, by

____,"--which was also to be printed on all copies of the foreign work

sold or distributed in the United States.

{Sidenote: Copyright conferences, 1905-06}

On January 27, 1905, Senator Kittredge announced (in Senate Report 3380)

that the Committee on Patents purposed to "attempt a codification of the

the Librarian of Congress suggested that he call a conference of the

several classes interested in such codification. Accordingly on April

10, the Librarian of Congress announced such a conference, of which

sessions were held at the City Club in New York, May 31 to June 2, and

November 1 to 4, 1905, and in the Library of Congress, Washington, March

13 to 16, 1906. At these conferences, organizations representing

authors, dramatic and musical as well as literary, artists, publishers,

printers, lithographers, librarians, the legal profession and the

public, participated through delegates, and discussed first a basic

memorandum presented by the American (Authors) Copyright League and

thereafter successive drafts of a copyright measure prepared by the

by Librarian Putnam, the final draft was prepared under the immediate

direction of the Librarian of Congress, which became the basis of the

bill "to amend and consolidate the acts respecting copyright" introduced

into the Senate by Senator Kittredge (Senate bill 6380) and into the

House by Chairman Frank D. Currier (H. R. bill 19853), May 31, 1906.

{Sidenote: "Copyright in Congress, 1789-1904"}

In connection with these conferences, a number of valuable documents

were prepared by Register Solberg and published through the Copyright

Office, among them a chronological record of "Copyright in Congress,

1789-1904," with bibliography, summarizing all Congressional proceedings

in relation to copyright through the second session of the Fifty-eighth

Congress.

{Sidenote: President Roosevelt's message, 1905}

Meantime President Roosevelt, in his annual message of December 5, 1905,

to the Fifty-ninth Congress, had made strong recommendations in favor of

imperfect in definition, confused and inconsistent in expression; they

omit provision for many articles which, under modern reproductive

processes, are entitled to protection; they impose hardships upon the

the public; they are difficult for the courts to interpret and

impossible for the Copyright Office to administer with satisfaction to

the public. Attempts to improve them by amendment have been frequent, no

less than twelve acts for the purpose having been passed since the

Revised Statutes. To perfect them by further amendment seems

impracticable. A complete revision of them is essential. Such a

revision, to meet modern conditions, has been found necessary in

Germany, Austria, Sweden and other foreign countries, and bills

embodying it are pending in England and the Australian colonies. It has

been urged here, and proposals for a commission to undertake it have,

from time to time, been pressed upon the Congress. The inconveniences of

the present conditions being so great, an attempt to frame appropriate

legislation has been made by the Copyright Office, which has called

conferences of the various interests especially and practically

concerned with the operation of the copyright laws. It has secured from

them suggestions as to the changes necessary; it has added from its own

experience and investigations, and it has drafted a bill which embodies

such of these changes and additions as, after full discussion and expert

criticism, appeared to be sound and safe. In form this bill would

replace the existing insufficient and inconsistent laws by one general

session. It deserves prompt consideration."

{Sidenote: Congressional hearings, 1906-08}

It was arranged that the two Committees on Patents of the Senate and

House should hold joint sessions for public hearings on the copyright

bill, and these hearings were held in the Senate reading room in the

Library of Congress, the first June 6 to 9, 1906, the second December 7

to 11, 1906, the third March 26 to 28, 1908, of each of which full

stenographic reports were printed for the Committees. At the first

hearing the discussions were largely on the general principles of

composers to control mechanical reproduction of their works. Amendments

proposed at this hearing were printed by the Copyright Office in two

parts, and a third or supplementary part gave the comment of the Bar

Associations' Committees. Register Solberg also printed as preliminary

to the second hearing the copyright bill compared with copyright

statutes then in force, and earlier United States enactments.

{Sidenote: Kittredge-Currier reports, 1907}

In 1907, at the second session of the Fifty-ninth Congress, the

(Senate bill 8190), accompanied later by the majority report, February

5, 1907 (Senate report 6187), and a minority report, February 7, 1907

(Senate report 6187; part 2); and by Chairman Currier January 29, 1907

(H. R. bill 25133), accompanied later by the majority report, January

30, 1907 (H. R. report 7083), and by a minority report, March 2, 1907

(H. R. report 7083, part 2). No action was taken at this session.

{Sidenote: Smoot-Currier, Kittredge-Barchfeld bills, 1907-08}

At the first session of the Sixtieth Congress, Senator Smoot, who had

become Chairman of the Patents Committee on the retirement from it of

Senator Kittredge, introduced a majority bill December 16, 1907 (Senate

bill 2499), and Senator Kittredge a minority bill December 18, 1907

(Senate bill 2900); and in the House, Chairman Currier introduced the

majority bill December 2, 1907 (H. R. bill 243), and A. J. Barchfeld the

minority bill January 6, 1908 (H. R. bill 11794). The Smoot-Currier

bills, practically identical, were less favorable to authors,

particularly in respect to mechanical reproductions of music, than the

Kittredge-Barchfeld bills; and in a pamphlet "The copyright bills in

comparison and compromise," prepared by R. R. Bowker in behalf of the

American (Authors) Copyright League in March, 1908, the features of the

several measures were compared and the views of the Copyright League set

forth in a combined measure, with annotations. The "canned music"

question, indeed, absorbed most of the time at the third hearing, in the

stenographic report of which a combined index to the several hearings

was printed.

{Sidenote: Washburn, Sulzer, McCall, Currier bills, 1908}

After the hearings, other bills were introduced into the first session

of the Sixtieth Congress by C. G. Washburn May 4, 1908 (H. R. bill

21592), more fully representing authors' views; by Wm. Sulzer May 12,

1908 (H. R. bills 21984, 22071), embodying views of dramatic authors; by

S. W. McCall May 12, 1908 (H. R. bill 22098), embodying an amendment to

the manufacturing clause as phrased by the American (Authors) Copyright

League, excepting from the manufacturing provision "the original text of

a foreign work in a language other than English," and by Chairman

Currier May 12, 1908 (H. R. bill 22183). But again no action was taken

at this session.

{Sidenote: Fourth Congressional hearing, 1909}

At the short (second) session of the Sixtieth Congress the copyright

bills were reintroduced in the House by Mr. Barchfeld December 19, 1908

(H. R. bill 24782), by Mr. Sulzer January 5, 1909 (H. R. bill 25162), by

Mr. Washburn January 15, 1909 (H. R. bill 26282). On January 20, 1909, a

fourth public hearing, specifically on "common law rights as applied to

Committee on Patents, to which had been referred the preparation of a

final draft, which hearing was reported with the inclusion of a

communication of Arthur Steuart, Esq., Chairman of the Copyright

Committee of the American Bar Association, giving a careful analysis of

the several common law rights possible as to copyright property. After

this hearing there were further reintroductions of copyright bills by

Mr. Washburn January 28, 1909 (H. R. bill 27310), by Chairman Currier

February 15, 1909 (H. R. bill 28192), and in the Senate by Senator Smoot

February 22, 1909 (Senate bill 9440).

{Sidenote: Passage of act of March 4, 1909}

The Currier bill was referred to the Committee of the Whole February 22,

when a report (H. R. report 2222) was presented. On February 26,

amendments were agreed to by the House Committee on Patents; on March 2

the bill had a further reading, and on March 3 was briefly discussed and

passed by the House. Senator Smoot had reported to the Senate March 1,

1909, with a report from the Committee (Senate report 1108), and on

March 3 the bill as passed by the House was brought before the Senate,

briefly discussed, and passed. The exact votes were not recorded.

{Sidenote: Approval by President Roosevelt}

It had scarcely been hoped at the beginning of 1909 by the friends of

energy of Chairman Currier, complemented by Senator Smoot in the Senate,

carried the bills through, and on March 4, the last day of the

administration of President Roosevelt, himself an author of distinction

and member of the Authors Club, he had the satisfaction of signing, as

one of his last acts, a copyright bill completely codifying the law of

code, as in force July 1, 1909, is printed with an index and with the

regulations adopted by the U. S. Supreme Court, as Copyright Office

Bulletin 14.

{Sidenote: Code of 1909}

{Sidenote: Hopes of future progress}

The code of 1909 made the manufacturing clause more drastic, though

freeing photographs from its provisions, by requiring in the case of

books, periodicals, lithographs and photo-engravings that they should be

completely manufactured within the United States, including printing and

binding as well as type setting, with requirement of affidavit from

printer or publisher in the case of books; but made on the other hand a

further approach to complete international copyright in freeing from the

manufacturing clause "the original text of a book of foreign origin in a

language or languages other than English," thus relieving a difficult

situation which threatened retaliation and the rupture of copyright

relations by Germany and other countries, and in extending protection to

mechanical music reproductions on a reciprocal basis. The hopes of the

friends of copyright will not, however, be fully realized until the

manufacturing clause, with the affidavit provision, is repealed, and the

United States enabled by Congress to join the family of civilized

nations as a signatory power in the Berlin convention.

{Sidenote: English and American systems}

decisions and precedents, that the previous chapters have covered most

of the points of copyright law in the United Kingdom. There are two

essential points of difference, however, between the English and

American systems. British copyright has depended essentially upon first

publication, not upon citizenship; and registration and deposit, which

are here a _sine qua non_, have there been necessary only (except in the

case of works of art) previous to, and as a basis for, an infringement

suit.

{Sidenote: First publication and residence}

A book first published in the United Kingdom (England, Scotland, Wales,

and Ireland) has been _ipso facto_ copyright, under the act of 1842,

throughout British dominions; and this protection was definitely

extended, by the act of 1886, to a work first published elsewhere in the

British dominions. This held whether the author were a natural-born or

naturalized British subject, wherever resident; or a person who was at

the time of publication on British soil, colonies included, and so

"temporarily a subject of the Crown--bound by, subject to, and entitled

to the benefit of the laws," even if he made a journey for this express

purpose; or, probably but not certainly, an alien friend not resident in

the United Kingdom nor in a country with which there was copyright

reciprocity. Under the statute of Anne, it was decided by the Law Lords,

in the case of Jefferys _v._ Boosey (overruling Boosey _v._ Jefferys),

that a person not a British subject or resident was not entitled to

1842 was construed to alter this. In the ruling case under the

last-named statute, Routledge _v._ Low, in 1868, Lords Cairns and

Westbury laid down explicitly that first publication was the single

necessity, and that copyright was not strengthened by residence; though

Lord Cranworth objected and Lord Chelmsford doubted whether this was

good law. It was because of this doubt that American authors had been

accustomed to make a day's stay in Montreal on the date of English

publication of their books. This decision was accepted by the law

officers of the Crown and became in 1891 the basis for the reciprocal

relations proclaimed by the President of the United States.

{Sidenote: Variations in copyright terms}

The copyright term in Great Britain has differed for the several

subjects of copyright, under the divers acts as stated in previous

chapters, the general term being for life and seven years or for

forty-two years, whichever the longer. Registration at Stationers' Hall

has been requisite only (except in the case of works of art) as

preliminary to suit, and infringement previous to registration was

punishable. Deposit of one copy in the British Museum has been required

within a stated time from publication, but only on penalty of fine and

not forfeiture of copyright, and the four university libraries might

demand copies. Under the international copyright acts, registration and

deposit at Stationers' Hall for transmission to the British Museum was

requisite for foreign works; but this was made unnecessary by the

adhesion of Great Britain to the International Copyright Union.

{Sidenote: The new British code}

The Copyright Act, 1911, as amended by the Lords, which became law (1 &

2 Geo. v. c. 46) on Crown approval December 16, 1911, provides a

codification for the British Empire as comprehensive as the American

code. The act covers as Part I, Imperial copyright, Part II,

International copyright, Part III, Supplemental provisions. The act

extends throughout His Majesty's dominions, but is not to be in force in

a self-governing dominion (Canada and Newfoundland, Australia and New

Zealand, and South Africa) unless enacted by the legislature thereof,

either in full or with modifications relating exclusively to procedure

and remedies or necessary to adapt the act to the circumstances of the

dominion, in case of which adoption the legislature may repeal the act

or enact supplementary legislation with reference to works first

published or whose authors are resident within the dominion. Thus the

bill practically permits the self-governing colonies to legislate

independently, each for itself within its domain. The act may also be

extended by Orders in Council to English protectorates "and Cyprus." Its

provisions are also made applicable (by Part II on international

countries, directly or through separate action by self-governing

dominions, under conditions which practically cover countries within the

International Copyright Union under the Berne-Berlin conventions, though

these are not named in the act; and to countries having reciprocal

relations,--with authority to the Crown to withdraw any benefits of the

act from citizens of countries not giving reciprocal protection. This

code is based largely upon previous British practice, though with

considerable extension and improvement.

{Sidenote: Scope and extent}

musical, and artistic work," first published within the included parts

of His Majesty's dominions, and in the case of an unpublished work, the

author of which was "at the date of the making of the work" a British

subject or a resident domiciled within such included parts [or under

protection through the international copyright provisions].

{Sidenote: Publication}

"A work shall be deemed to be published simultaneously in two places if

the time between the publication in one such place and the publication

in the other place does not exceed fourteen days," or such longer period

as may be fixed by Order in Council. Publication is expressly

distinguished from performance, exhibition or delivery.

{Sidenote: Definition of copyright}

work or any substantial part thereof in any material form whatsoever" or

any translation thereof, to publish, perform, or deliver the work in

public, to dramatize or novelize it, to make any record, roll, film or

other contrivance by which it may be mechanically performed or delivered

or to authorize any such acts. Architectural works of art are included

as to design but not process or method.

{Sidenote: Infringement and exceptions thereto}

Infringement is comprehensively and sweepingly defined to cover any

copying or colorable imitation of any copyright work or the doing by an

unauthorized person of "anything the sole right to do which is by this

Act conferred on the owner of the copyright." The code specifically

excepts from the provisions against infringement (1) any "fair dealing"

for private study, research, review or newspaper summary; (2) the use by

an artist who has sold his copyright in a work of moulds, sketches,

etc., except to repeat or imitate the design of that work; (3) the

making or publishing of paintings, drawings, engravings, or photographs

of a work of sculpture or artistic craftsmanship, if permanently situate

in a public place or building, or (if not in the nature of architectural

drawings or plans) of an architectural work of art; (4) the use in

collections described and advertised as for school use, of extracts from

more than two from any one author, and not duplicated within five years

by the same publisher; (5) the newspaper report of a public lecture,

unless specifically prohibited by exhibited notice; and (6) the reading

or recitation in public by one person of any reasonable extract.

{Sidenote: Term}

The copyright term is for the life of the author and fifty years after

his death, with provision that after an author's death the Judicial

Committee of the Privy Council may, on allegation of the withholding of

the work, require grant of license to reproduce, publish or perform it.

Posthumous works, works the property of the Crown, photographs and

mechanical music reproductions, are protected for fifty years; but no

specific term seems to be indicated for anonymous or pseudonymous works

as such. Works of joint authorship are protected for fifty years after

the death of the author who _first_ dies, or during the life of the

author who dies last, whichever the longer period, and such works may be

protected by action of any one of the authors. Twenty-five years, or for

existing works thirty years after an author's death, any person may

under specified conditions publish a copyright work on payment of ten

per cent royalty--following an Italian precedent. Compulsory license is

also provided for mechanical music reproductions, in case the author

permits any such reproduction--following the American provision.

University copyrights are continued in perpetuity only for existing

copyrights.

{Sidenote: Ownership}

The author of a work is the first owner of the copyright, except in the

case of a work done on order or in the course of contract employment.

The owner of a copyright may by an assignment in writing assign his

rights wholly or partially, and either generally or as limited to any

part of His Majesty's dominions, or for the whole term of copyright or

any part thereof, or license accordingly. But no assignment otherwise

than by will shall be operative beyond twenty-five years from the death

of the author, when the copyright reverts to his natural heirs,

following Spanish precedent.

Registration provisions are altogether omitted from the new measure.

{Sidenote: Deposit copies}

Deposit is required at the British Museum within one month after

publication, "of every book published in the United Kingdom" on penalty

of fine not exceeding five pounds and the value of the book, and copies

must also be supplied to the four university libraries, and for specific

classes to the National Library of Wales, on demand--the "best" edition

in the case of the British Museum, and that of which most copies are

sold in the other cases.

{Sidenote: Importation}

Importation of "copies made out of the United Kingdom ... which if made

within the United Kingdom would infringe copyright," is prohibited, on

notification in writing to the Commissioners of Customs (the Isle of Man

being specifically excepted from this provision), and similar

prohibition is authorized as to British possessions. The use in the

section on infringement of the phrase "imports for sale or hire," taken

from the act of 1842, involves a possible limitation of this prohibition

which is discussed in the chapter on importation.

{Sidenote: Remedies}

The usual civil remedies are provided, actions being limited within

three years from the infringement. If the real name of an author, or in

the absence of such, the name of a publisher, is indicated on a work,

that is _prima facie_ evidence of copyright ownership in the prosecution

of infringement. An infringer may be relieved from damages (but not from

injunction) on proving innocence; architectural infringements may not be

enjoined after commencement of the structure, but are punishable by

damages. On summary conviction any person who knowingly for sale or hire

or for trade makes, sells or lets, distributes, exhibits, or imports

infringing copies, shall be liable to a fine not exceeding forty

shillings for each copy or fifty pounds for the same transaction, or in

the case of a second offense, to imprisonment not exceeding two months;

and similar provision is made as to infringing performance. The summary

remedies in the musical copyright acts of 1902 and 1906 remain

unrepealed.

{Sidenote: General relations}

The provisions of the code are extended to cover existing copyrights.

Common law rights are specifically abrogated by provision confining the

protection of an unpublished as well as a published work to statutory

provisions.

{Sidenote: Acts repealed}

The measure repeals all existing enactments except sections seven and

eight (modified) of the fine arts copyright act, 1862 (25 & 26 Vict. c.

68), which deal with fraudulent signature or marketing of art works and

concern fraud rather than copyright, and the musical copyright acts of

1902 and 1906, providing summary remedies for piracy of musical works;

and the provisions regarding copyrights of the customs and revenue acts

are continued with modifications conforming them to this act.

The act does not apply to designs capable of being registered under the

patents and designs act, 1907. Schedules of existing and corresponding

rights and of enactments repealed are appended to the bill. The act is

effective July 1, 1912, unless earlier made effective by Order in

Council.

{Sidenote: Changes from original bill}

It may be noted that the new British measure had been much

modified,--especially in the Committee stage, where efforts to reconcile

conflicting interests were chiefly effective,--since its introduction as

a Government measure in 1910. In the earlier form it was provided that

the contributor of an article or contribution, periodical articles

included, might retain a specific copyright except as against the

proprietor of a collective work, and that an article in a newspaper, not

being a tale or serial story, might be reproduced in another newspaper

in default of a notice expressly forbidding it, providing the source

were duly acknowledged. University copyrights, new as well as old, it

was then proposed should still be perpetual. Copyright, it was

specifically provided, should not pass from an artist when he sells his

original work except by agreement in writing, but subsequent transfers

of the original work from an owner also of the copyright, should

transfer the copyright--but this is probably taken as implied in the new

law. Registration at Stationers' Hall was continued and made applicable

to all classes of works, and though optional, it was practically

necessitated by the ingenious provision that in the absence of such

registration an infringer might plead ignorance and be freed from

damages. The summary provisions of the musical copyright acts were

extended to cover other works, and these acts it was therefore proposed

to repeal. The compulsory license provision limiting musical copyright

and certain provisions as to ownership and term were introduced in the

Committee stage. The word "infringing" was substituted for "piratical"

in Parliamentary debate to conciliate a supersensitive member. The

compromises and modifications indicated brought the measure before

Parliament as an "agreed upon" bill.

{Sidenote: Isle of Man}

{Sidenote: Channel Islands}

The Isle of Man applies the copyright law of the United Kingdom, and has

a supplementary law of 1907, applying British legislation on engravings

and prints, sculpture, paintings, etc., and musical compositions, quite

up to date, embodying in the latter section the latest provisions as to

summary proceedings in the protection of music--this being enacted by

"the Deemsters and Keys in Tynwald assembled," as the tiny Manx

parliament is quaintly called. The Channel Islands of Jersey and

Guernsey also apply British copyright law by ordinances or local

legislation in their respective domains.

{Sidenote: International relations}

Great Britain was one of the original parties to the Berne convention

and accepted the additional act, but not the interpretative declaration

of Paris, and the passage of the new measure will permit adhesion to the

Berlin convention. She has a special treaty with Austria-Hungary (1893),

sometimes cited as the treaty of Vienna of 1893, and has been in

reciprocal relation with the United States as a "proclaimed" country

since July 1, 1891.

{Sidenote: Colonial relations}

The British dominions outside of the United Kingdom and Ireland are, in

general, under the like provisions of Imperial copyright law, including

the law of 1842 and earlier unrepealed or subsequent acts, the colonial

especially important. They are also generally included under British

international relations embracing the Berne-Paris provisions of the

International Copyright Union and the reciprocal relations with the

United States, but with the exception that in the Austria-Hungary

treaty, Canada, New South Wales and Tasmania (both now part of the

Australian Commonwealth), and Cape Colony (now part of the Union of

South Africa) are not parties, because these colonies did not exercise

the right of ratification specifically reserved to individual colonies.

{Sidenote: Judicial confirmation}

The application of the Berne convention to the British possessions was

upheld in an important Canadian decision, when in 1906 Justice Fortin,

in Mary _v._ Hubert, in the Quebec Court of King's Bench, held that the

British international copyright act in relation with the Berne

convention protected a French work from Canadian reprint, though the

author had not complied with specific Canadian requirements,--a most

significant decision in defense of international copyright.

{Sidenote: Local legislation}

Under the colonial copyright act of 1847, which declared local

legislation or decrees repugnant to the Imperial law to be null and

void, local legislation consonant with Imperial acts was permitted,

subject to approval by the Crown through Orders in Council, in which

case prohibition of importation of foreign reprints might be suspended

by Order in Council with regard to the particular colony. Under this

act, local legislation with special provisions existed in British India

and other colonies, as well as in the "self-governing dominions," which

last now include Canada and Newfoundland, Australia and New Zealand, and

South Africa, and which have somewhat greater powers of local

legislation. Under these local provisions, the Imperial law still

prevails, local legislation being concurrent but not necessarily

co-terminous with it, as is particularly noticeable in Canada, where

there has been more or less conflict between the Imperial and Dominion

authorities. Local protection may thus be extended, for instance, to

works not first published within the British possessions, or in a

unionist country, but copyright cannot be denied to works thus first

published; and the Crown disapproves or disallows laws or provisions

construed by the Imperial authorities to be repugnant to Imperial law.

More than a score of colonies have adopted local laws or ordinances,

some of which have been disallowed by the Crown. The _status_ of

to the best-informed English jurists, and can seldom be stated with

certainty. Under the new British code, the "self-governing dominions"

will have the right to accept the Imperial code, either completely or

with adaptation to local judicial methods, or to legislate

independently.

{Sidenote: Canadian copyright history}

In respect to the colonies now constituting the Dominion of Canada,

before British copyright protection had been definitely extended to

works first published outside the United Kingdom, Lower Canada in 1832,

Canada (upper) in 1841 and Nova Scotia in 1847 had passed copyright

statutes to protect authors of books first published in the respective

provinces. On the passage of the Imperial act of 1847, authorizing the

suspension of that portion of the act of 1842 which prohibited the

importation of foreign reprints of British copyright works, as to any

colony in which provision should be made by local legislation for

protecting the rights of British authors, Orders in Council were passed

for Nova Scotia and New Brunswick in 1848 and for Canada in 1850,

suspending such prohibition, following satisfactory protection accorded

by local acts in those years. These local acts provided for the

collection of an impost on foreign reprints of works by British authors

in favor of the author or copyright owner.

{Sidenote: Dominion of Canada: early acts}

In 1867 the British North America act (30 & 31 Victoria, c. 3) was

passed, providing for the union of Canada and the other North American

provinces (except Newfoundland) under the title of the Dominion of

Canada, and section 91 of this act specified copyright among the

subjects which were to be within the legislative authority of the

Parliament of Canada. At the first session of the first Dominion

Parliament in 1868, a general copyright act was accordingly passed,

which was followed in the same year by an act continuing the customs

duty of 12-1/2 per cent on foreign reprints of British copyright works,

and an Imperial Order in Council was passed July 7, 1868, continuing

Canada within the provisions of the foreign reprints act of 1847. The

returns to British authors from this duty proved so small--only L1084 in

ten years--that there was much dissatisfaction, and this impost was

finally discontinued in 1895, whereupon the suspension under the

Imperial act of 1847 of the prohibition of importation ceased to be in

force in Canada and foreign reprints of British copyright works were

again under the Imperial law prohibited.

{Sidenote: Acts of 1875}

In 1872 a new Canadian copyright act was passed, but it was disallowed

by the Imperial authorities, whereupon, in 1875, the Parliament of

Canada passed a new act, carefully drawn to avoid conflict with Imperial

legislation. To remove any doubts as to its validity, the "Canada

the royal assent. This Imperial act forbade the importation into the

United Kingdom of colonial reprints, though authorized for the Canadian

market by British authors (and therefore not piracies), of any work

which might be copyrighted in Canada, and in which copyright subsisted

in the United Kingdom. The Canadian act of 1875 then received the

approval of the Crown, and as replaced and substantially re-enacted by

the Revised Statutes of Canada, 1886 (c. 62),--which also included (as

c. 37) the amendatory act of 1886, prohibiting the importation of

"reprints of Canadian copyright works and reprints of British

copyrighted works which have been also copyrighted in Canada,"--is still

in force, being now Revised Statutes, 1906, c. 70, pt. I, as the

fundamental Canadian copyright law, subject to amendments since passed

and approved. The Imperial and Canadian laws of 1875, taken together,

make it possible to issue in Canada cheaper reprints of British

without interfering with the more costly English editions.

{Sidenote: License acts disallowed}

It should here be noted that the Canadian act of 1889, as amended by the

Canadian act of 1895, constituting Part II of chapter 70 of the Revised

Statutes, 1906, has never been approved and brought into force by

proclamation of the Governor-General. The act of 1889, following the

Imperial international copyright act of 1886, extended Canadian

and printing and publication or production in Canada within one month

after publication or production elsewhere, and provided that the

Minister of Agriculture might grant licenses, not exclusive, for the

production of works not thus protected on an undertaking to pay to the

author ten per cent royalty on the retail price, in which case

importation of foreign-made (but not British) editions might be

prohibited during the copyright period. The act of 1895 extended this

license system to works which the copyright proprietor failed to keep in

print in Canada, unless he should give satisfactory assurance of prompt

reissue. These acts, as noted, never became effective.

{Sidenote: The Fisher act, 1900}

In 1900 an amendment to the copyright act was passed which is sometimes

referred to as the Fisher act. It provides that if a book, as to which

there is subsisting Canadian copyright under the copyright act, has

first been published in any part of the British dominions other than

Canada, and the owner of the copyright has granted a license to

reproduce in Canada an edition of such book designed for sale in Canada

only, the Minister of Agriculture may prohibit the importation into

Canada, except with the written consent of the licensee, of any copies

of such book printed elsewhere, excepting two copies each for the use of

public or institution libraries. There is some question as to the

compatibility of this act with Imperial law.

{Sidenote: Minor acts}

{Sidenote: Short form of notice}

An act of 1887 had authorized the transfer from the Minister of

Agriculture to the Minister of Trade and Commerce of the registration of

industrial designs and trade-marks, but this transfer has never taken

place. The acts of 1890 and 1891 provided for copyright suits in the

Exchequer Court of Canada in the name of the Attorney-General or at the

suit of any person interested. The act of 1895 also contained a

provision adding to the two deposit copies required for Canada a third

for deposit in the British Museum. Finally an act of 1908 substituted

the short form of copyright notice, "Copyright, Canada, 19__, by A. B."

This completes the history of Canadian copyright legislation.

{Sidenote: Proposed Canadian copyright code, 1911}

The copyright legislation of Canada will presently be replaced by a

comprehensive code, utilizing the permission granted by the new Imperial

the original text, as submitted to Parliament April 26, 1911, is given

in full in the appendix, will establish relations between the Dominion

of Canada and the Imperial authority closely similar to those

established by the Australian act of 1905, between that Commonwealth and

the home government. It pushes still further the precedent of

"protection to home industries" followed by American copyright

legislation since 1891, and is a far more drastic measure, evidently in

retaliation against the United States and with preferential relations

toward Great Britain in view. Americans can scarcely criticize, however,

the logical application in Canada of legislation on this side of the

border. Copyright is to "subsist in every original literary, dramatic,

musical and artistic work the author of which was at the date of making

the work a _bona fide_ resident in Canada," not first published outside

Canada (simultaneous publication being defined as within fourteen days),

conditioned on registry before publication, and the manufacture of every

copy within Canada. One registration of a periodical is to protect all

future issues. Copyright it is proposed to define broadly, as in the

new English bill, including the right "if the work is unpublished, to

publish the work," thus bringing unpublished works within the statute

law and probably excepting them from common law protection; and

protection against mechanical music reproduction is also to be included.

The term is to be for the life of the author and fifty years

thereafter, with the new British proviso as to works of joint

authorship, that the term is to be for the life of the author who dies

first and fifty years thereafter, or the life of the author who dies

last, whichever period is the longer. Assignment of copyright must be

in accordance with the acts, and be registered. Importation of copies

made out of the British dominions is prohibited. In case of a license

for a Canadian edition of a book, copies printed elsewhere may be

prohibited importation, except two copies for library use. Copyright may

also be extended to foreign citizens under arrangements made by the

governor in Council. British subjects resident elsewhere than in Canada

may be brought under the act by Order in Council.

{Sidenote: Imperial and Canadian copyright}

{Sidenote: Requisites for domestic copyright}

The Imperial and Canadian copyright laws, apparently a complexity of

complexities, are construed with relation to each other and thus do not

conflict. Each is good _pro tanto_. The Canadian copyright law permits

any person domiciled in Canada or in any part of the British

possessions, or any citizen of any country which has an international

literary, scientific or artistic work, to obtain copyright in Canada for

twenty-eight years, with a right of renewal for fourteen years to the

author, if living, or to his widow or children, if he is dead,

conditioned on re-registration within one year _after_ the expiration of

the original term, publication of a renewal notice in the Canadian

Gazette and fulfillment of the obligations of original copyright. The

requirements for obtaining domestic copyright in Canada are that the

work shall be printed and published in Canada, shall be registered and

three copies thereof deposited at the Department of Agriculture

(Copyright Branch) before publication, and that each copy published

shall bear the notice as cited above. In the case of paintings, drawings

and sculpture, the original work may be protected by deposit of a

written description instead of copies.

{Sidenote: Imperial and local protection}

Under the Imperial copyright act of 1886, providing that a book first

published in any part of the British dominions shall have copyright

throughout those dominions, works are protected in Canada under that

act. Subjects or citizens of a country which has no international

Canada under the Canadian law by showing that they have British

requirements. Copyright obtained under the Canadian copyright law, so

far as it relates to books first published in the British dominions, is

in addition to and concurrent though not co-terminous with Imperial

charge of the Registrar of Copyrights, Trade Marks and Designs, a post

filled since 1906 by P. E. Ritchie, Esq. Canadian copyright may be

obtained in a work although the Imperial copyright may have been lost by

reason of first publication having been made outside of the British

dominions or treaty relationship, the Canadian law providing that

literary works may be protected when printed and published in Canada,

whether they are so published for the first time or contemporaneously

with or subsequently to publication elsewhere.

{Sidenote: Additional local protection}

Canadian copyright also affords additional protection and relief not

granted by Imperial copyright, by provisions (1) that the importation

into Canada of foreign reprints of Canadian copyright works is

prohibited, and (2) that every person who knowingly prints, publishes,

sells, or exposes for sale any piratical copy of a copyright work shall

forfeit every such copy to the copyright owner and shall pay for every

such copy found in his possession, printed, published or exposed for

sale by him not more than one dollar and not less than ten cents, one

half of which shall belong to the copyright owner.

{Sidenote: Application for copyright}

An applicant for Canadian copyright, either the proprietor or his

authorized agent, whether domiciled in Canada or other British

possessions or a citizen of a country having an international copyright

treaty with Great Britain, should make application to the Minister of

Agriculture (Copyright Branch), Ottawa, Canada, for which statutory

forms are provided from that office, attested by two witnesses and

accompanied by a fee of one dollar for copyright registration, or fifty

cents in case of _interim_ or temporary copyright, and three copies of

the book (full bound), map (mounted), etc., as printed and published in

Canada, or written description of a work of art. A book must bear the

statutory copyright notice, but a work of art the signature of the

artist only. An author or his legal representative may obtain _interim_

title of a work. Thus a citizen of the United States may protect his

work in Canada through international copyright by first publication in

the British dominions and also through Canadian copyright, with

additional protection, by complying with the requirements of the

Canadian law, which are in some respects closely parallel with those of

the United States.

{Sidenote: Newfoundland}

In Newfoundland, always a separate colony and now a self-governing

dominion separate from the Dominion of Canada, an act of 1849 for the

protection of British authors was followed by an Order in Council of the

same year extending to that colony the provisions of the Imperial act of

1847. It made provision, following the precedent of Canada, for a

customs duty on foreign reprints of British copyright works, which

provision was re-enacted in the Consolidated Statutes of 1872 as chapter

53 and again in the Consolidated Statutes of 1892 as chapter 111, the

duty being at twenty per cent. In 1890 a copyright act was passed,

which remains the fundamental copyright act of Newfoundland, as included

in the Consolidated Statutes of 1892 as chapter 110, supplemented by

chapter 111, as above indicated. These two chapters have been amended

only by the act of 1898 placing copyrights, patents and trade marks

under the jurisdiction of the Colonial Secretary, an officer provided

for in the act, and the act of 1899 reducing the copyright fee of one

dollar to twenty-five cents in the case of photographs. Copyright in

Newfoundland is on the same general lines as in Canada, following in

large part the precedent of the United States, and is for a term of

twenty-eight years with renewal for fourteen years--local protection as

distinguished from Imperial protection being given to works printed and

published--or in the case of works of art, produced--within

Newfoundland, on condition of registration with the Colonial Secretary

and deposit with him of two copies of a printed work, bearing statutory

must bear the signature of the artist,--one of the two copies being for

the use of the Legislative Library.

{Sidenote: British West Indies, etc.}

In the British West Indies, Jamaica has domestic legislation of 1887

under the Imperial act of 1886, for the British term, requiring the

deposit at an office notified in the Jamaica _Gazette_ of three copies

within one month from publication--one for the British Museum, one for

official use, and one for a designated public library. The Governor may

declare one copy sufficient where deposit of three copies would inflict

injury. Trinidad, under an ordinance of 1888, provides similarly for the

deposit of three copies in the office of a Registrar of copying rights,

with optional but not obligatory registration of playright. The minor

British islands in the West Indies, the Bahamas, British Guiana and

British Honduras, seem not to have provided local legislation, but

remain exclusively under Imperial law.

{Sidenote: Australian code of 1905}

The copyright act, 1905, of the Commonwealth of Australia, assented to

December 21, 1905, is a comprehensive code superseding previous

New South Wales, Victoria, Queensland, South Australia, Western

Australia and Tasmania, although it preserves the rights in existing

copyrights taken out under the several state acts. International

copyrights under acts of the Parliament of the United Kingdom and state

copyrights may be registered under this act and then enforced throughout

the Commonwealth. This act covers (Part III) literary, musical and

dramatic copyright and separately (Part IV) artistic copyright. Part I,

preliminary, deals with definitions, and Part II with administration.

Part V deals with infringement, Part VI with international and state

provisions. "The common law of England" is specifically applied to

unpublished literary compositions. The Australian code is of course

concurrent though not co-terminous with the Imperial law, and must be

construed in consonance with it. It is admitted that artistic works are

not protected in Australia under either Commonwealth or Imperial law

unless "made in Australia," and this serious difficulty the Commonwealth

authorities proposed to remedy by an amendatory act which was presented

to the Commonwealth legislature in 1906 but was not then passed. To

prevent importation of pirated works, written notice of the copyright

and its term should be given to the Minister in Australia unless

communicated to him by the Commissioners of Customs of the United

Kingdom, from registry in London, through the lists periodically

distributed.

{Sidenote: General provisions}

copy, abridge, translate, dramatize or novelize, and in the case of a

musical work "to make any new adaptation, transposition, arrangement, or

setting of it, or of any part of it in any notation." "Copyright shall

subsist in every book" (including by definition a dramatic or musical

work, when printed and published), "whether the author is a British

subject or not, which has been printed from type set up in Australia, or

plates made therefrom, or from plates or negatives made in Australia, in

cases where type is not necessarily used, and has ... been published in

Australia before or simultaneously" (defined as within fourteen days)

"with its first publication elsewhere"; and the copyright term is

forty-two years from first publication in Australia or the life of the

author or of the last surviving joint author and seven years thereafter,

whichever the longer. Performing right and lecturing right subsist

separately for a like period from first public performance or delivery

in Australia simultaneously with first public performance or delivery

elsewhere. But lecturing right ceases if a lecture is published as a

book. The author is the first owner of copyright or performing right,

except as employed for valuable consideration, and in the latter case

may reprint an article from a periodical after one year. Copyright

subsists in every artistic work "made in Australia," but the copyright

of a portrait or photograph is with the person ordering it.

{Sidenote: Dramatic and musical works}

A dramatic work includes a libretto or lyrical work set to music or

otherwise, "or other scenic or dramatic composition"; a musical work is

defined as "any combination of melody and harmony, or either of them,

printed, reduced to writing or otherwise graphically produced or

reproduced"--which seems to omit mechanical reproductions.

{Sidenote: Performing right}

the ownership of an artistic work, and either right may be separately

assigned under any conditions or limitations. Where a dramatic or

musical work is published as a book, notice of reservation of performing

right must be printed thereon, in default of which the owner of the

performing right cannot obtain damages from an infringer, but may obtain

them from the owner of the copyright who has neglected after notice to

print such reservation. The proprietor, tenant or occupier who permits a

place to be used for an infringing performance shall be deemed an

infringer. The owner of a performing right may himself issue notices in

writing forbidding performance, disregard of which involves a specified

fine.

{Sidenote: Registration and license}

Provision is made for a registrar and deputies, and for a general

copyrights, of fine art copyrights and of international and state

copyrights. The owner of any copyright, performing or lecturing right

may obtain registration by the deposit of two copies of the best edition

of a book or one copy of an art work or photograph of it, and no suit

can be maintained prior to such registration. In case, after the death

of an author, the owner of the copyright or performing right withholds

the work from the public, the Governor-General may grant a license for

publication or performance.

{Sidenote: New Zealand}

New Zealand, now a separate self-governing dominion, provided when a

British colony,--like the Australian colonies before their consolidation

into the self-governing Commonwealth,--by an Ordinance of 1842 for a

has since passed special acts, covering specific classes, 1877 to 1903,

but seemingly no general code. Photographs are protected for five years

from the taking. Telegraph dispatches were protected by the electric

lines act of 1884. Local registration seems to be provided only, and

then optionally, for the protection of plays, for which purpose

application with a copy of the play should be made at the Registry of

Copyrights, Wellington, and if the play is printed a copy deposited in

the Library of the General Assembly; and summary jurisdiction, with

power of fine and imprisonment, is then given to the magistrates. To

prevent importation, notice may be filed with the Minister of Customs in

New Zealand, or through the London commissioners, as in the case of

Australia.

{Sidenote: Australasia otherwise}

In the other British islands of Australasia and the Pacific, Imperial

the only one passed in any of the smaller islands, was disallowed by the

Crown.

{Sidenote: British India}

British India provided a general copyright act in 1847, in line with

preceding Imperial legislation, and under the press copyright act of

1867, somewhat modified the British Imperial law, especially providing

for deposit of three copies in an office to be designated from time to

time in the official gazette, within one month from publication, and the

printing on each copy of the printer's and publisher's names. Quarterly

publication of such titles is provided for as part of the official

gazette. The general term is as in Great Britain, for life and seven

years or forty-two years, whichever is longer, with variations for

particular classes of works. Ceylon, Mauritius and Hong Kong have the

like term and also provide for three deposit copies. In all these cases

one copy is retained by the Secretary of State of the colony, one put at

the disposition of the Governor and Council, and one after registration

deposited in a designated public library. Straits Settlement (Singapore)

provides for registration without deposit, in the office of Colonial

Secretary. To prevent importation into British India, specific notice

may be filed directly with the Collectors of Customs at Bombay, Madras

and Calcutta as well as through the London customs.

{Sidenote: South Africa}

South Africa, the latest of the British self-governing dominions as

organized in 1910 into a Union, has not yet adopted a general copyright

code, which it may do under the precedent of Australia or after passage

of the new British copyright code, by acceptance of that code or by

independent legislation. Meantime its copyright relations are those of

the former separate colonies, as the Cape Colony, Natal and other

English colonies, following in the main English precedent, and the

Transvaal and other Dutch colonies, following Holland precedent,

including a requirement for printing within the country as a

prerequisite for copyright.

{Sidenote: Cape Colony}

The Cape Colony, under acts of 1873, 1880, 1888 and 1895, provided local

four copies of a book or printed play first published in the colony to

be deposited for registration by the printer within one month from

delivery from the press, for registration with the Registrar of Deeds,

these copies to be transmitted to designated libraries. Telegraph

dispatches in newspapers were protected by the act of 1880, for 120

hours. Lists of copyrighted works are printed in the government gazette

and thus communicated to the colonial customs authorities.

{Sidenote: Natal}

Natal, under acts of 1895, 1897 and 1898, provided local protection for

the regular British term, two copies to be deposited with the Colonial

Secretary for registration, within three months from publication.

Messages by telegraph, pigeons and other special dispatch were protected

by the act of 1895, for 72 hours. To protect a play, the title, if in

manuscript, or a printed copy, must be registered precedent to local

action. Probably failure to deposit in these colonies does not forfeit

{Sidenote: Transvaal}

The Transvaal, under local legislation of 1887, provided protection for

fifty years from registration, receipt or for life, on condition of

printing within the colony, and the deposit of three copies thus

printed, within two months of publication, accompanied by the affidavit

of the printer, without which formalities copyright was forfeited. A

resolution of 1895 authorized waiver of the printing requirement in the

case of countries having reciprocal relations. Reservation by printed

notice was required to protect playright and right of translation;

playright in a printed play was limited to ten years, but for an

unpublished play was for life and thirty years. All these colonies,

whether formerly British or Dutch, are probably now under Imperial

that law, pending the enactment of a South African general code.

{Sidenote: West coast colonies}

Sierra Leone and the neighboring British colonies on the west coast, as

Gambia and the Gold Coast, are under imperial copyright law, and passed

local ordinances under the provisions of the British act of 1886, Sierra

Leone having provided by Ordinance of 1887 for copyright for the usual

British term with deposit of three copies in an office to be designated

in the Sierra Leone Royal _Gazette_, and the other colonies having

similar provisions.

{Sidenote: Mediterranean islands}

The Mediterranean islands of Malta and Cyprus, in addition to imperial

in an office notified in the government gazette, and deposit of three

copies, within one month from publication. Gibraltar seems to be only

under Imperial copyright.

XXI

{Sidenote: France}

France has always been the most liberal of countries in giving copyright

protection to foreign as well as native authors publishing within

France, and copyright was perpetual up to the abrogation by the National

Assembly in 1789 of all privileges previously granted. Though two acts

regarding dramatic performances (_spectacles_) were passed in 1791, it

was not till 1793 that the National Convention passed a general

published by its order or by its agents, but not in private copyrights

lapsing to the state for lack of heirs; copyrights otherwise, by the law

of 1866, are for life and fifty years. Playright is protected without

deposit, but the printer of a book or play is required to deposit two

copies on penalty of fine but not forfeiture of copyright. No

formalities are requisite, but to obtain a right of action, deposit of

two copies of a book is required, at the Ministry of the Interior at

Paris or at the Prefecture or town clerk's office if in the provinces,

for which a receipt is given. More than a score of laws modifying the

French copyright system have been passed, the latest being that of April

9, 1910, providing that transfer of a work of art does not involve the

{Sidenote: French foreign relations}

France, which had in general extended the protection of domestic

author, specifically protected, by the decree of 1852, from

republication (though not from performance) works published abroad,

without regard to reciprocity, on compliance with the formalities of

deposit previous to a suit for infringement. It early negotiated

treaties with other countries, only those with England (since replaced

by relations through the International Copyright Union) and Spain

requiring deposit in those countries, while four of the countries which

required registration permitted that it should be performed at their

legations in Paris.

France, as also its protectorate Tunis, became one of the original

signatory powers of the Berne convention of 1886, adopted the Paris acts

of 1896, and after some delay and discussion accepted the revised Berlin

convention under the act of June 28, 1910, ratified by decree of

September 2, 1910, with reservation as to works of applied design, as to

which it maintained the stipulations of the previous conventions. It has

treaties with Austria-Hungary (1866-1884), Holland (1855-1884),

Montenegro (1902), Portugal (1866), and Roumania by an arrangement on

the "most favored nation" basis (1907). It has also still existing

treaties with Germany (1907), Italy (1884), and Spain (1880), among the

unionist countries, on the "most favored nation" basis--former treaties

with Great Britain and the Scandinavian countries having been superseded

by International Copyright Union relations. It has been in reciprocal

relations with the United States as a "proclaimed" country since July 1,

1891; and it has also treaties with the Latin American countries of

Argentina (1897), and Paraguay (1900), both under the Montevideo

convention, Bolivia (1887), Costa Rica (1896), Ecuador on the "most

favored nation" basis (1898, 1905), Guatemala (1895), Mexico through a

treaty of commerce on the "most favored nation" basis (1886), and

Salvador (1880), and one with Japan (1909) as to rights in China.

Algiers and other colonies are under French law, and French precedent is

followed by the protectorate Tunis, though as a separate power.

{Sidenote: Belgium}

Belgium, under the law of 1886, grants copyright and playright for life

and fifty years, including translations and photographs, or for

corporate and like works fifty years. No formalities are required except

that corporate and posthumous works must be registered at the Ministry

of Agriculture within six months from publication. Notice is required

only to forbid reproduction of newspaper articles. Belgium is one of the

original parties to the Berne convention, adopted the Paris acts and

ratified on May 23, 1910, the Berlin convention. It has treaties with

Austria (1910), Holland (1858), Portugal (1866), and Roumania (1910), as

also with Germany (1907) and Spain (1880)--all save Austria and Portugal

on the "most favored nation" basis; it has been in reciprocal relations

with the United States as a "proclaimed" country since July 1, 1891, and

as to mechanical music since June 14, 1911, and has also treaties with

Mexico on the "most favored nation" basis (1895), and under the

Montevideo convention with Argentina and Paraguay (1903).

{Sidenote: Luxemburg}

Luxemburg, under its law of 1898, very nearly a copy of the Belgian law,

grants copyright and playright for life and fifty years. The right to

translate is protected for ten years from the publication of the

original work. Registration is required only for posthumous or official

works to be made at the Office of the Government; and notice is required

only to reserve playright or to forbid reprint of newspaper articles.

Protection is provided against mechanical music reproductions. Luxemburg

was an acceding party to the Berne convention, accepted the Paris acts

and ratified the Berlin convention July 14, 1910; it has had reciprocal

relations with the United States as a "proclaimed" country since June

29, 1910, and as to mechanical music since June 14, 1911.

{Sidenote: Holland}

Holland, originally giving copyright in perpetuity under indefinite

conditions, and later applying French law, is now under its law of 1881,

the only country in Europe still requiring, in accordance with its

ancient practice, printing and publication within the country. Two

copies, so printed, must be deposited with the Department of Justice

within a month from publication, and playright must be reserved on a

printed work. The general term is for fifty years from the date of the

certificate of deposit and through the life of the author, if he has not

assigned his work, and for unprinted works, including oral addresses,

life and thirty years. The protection for unprinted works covers

playright and the right to translate, and protects any author domiciled

within Holland or the Dutch Indies. For corporate and like works, the

term is fifty years. The exclusive right to translate, must be reserved

on the original work and exercised within three years; the translation

is then protected for five years, provided it is printed within the

country. Playright in a printed play lasts only ten years from deposit.

Holland is not a party to any general convention, but it has a treaty

with Belgium on the "most favored nation" basis (1858) and arrangements

with France (1855-1884); and it has had reciprocal relations with the

United States as a "proclaimed" country since November 20, 1899. The

Dutch colonies, as in the East and West Indies and elsewhere, are

generally included under Dutch law. A new copyright code presented by

the government in 1910, omitting the printing requirement, has passed

the first Chamber, and after it becomes law Holland, under a concurrent

vote in 1911, is authorized to accede to the Berlin convention.

{Sidenote: Germany}

(impliedly including dramatic) and musical works and certain

illustrations, by the act of 1901,--in which year there was also adopted

an act regulating publishers' rights and contracts; and for works of

figurative art and photographs by an act of 1907. An act of 1910 amends

these in some particulars.

{Sidenote: History}

These laws superseded entirely the previous acts, dating back to 1870,

when the first imperial copyright act was passed after the realization

of German unity under Emperor William I. The original act forming the

Germanic confederation in 1815, had authorized the German Diet to

protect authors' rights, and after futile decrees in 1832 and 1835,

resolutions were passed in 1837 making protection effective for a

minimum period of ten years throughout all the states which granted

protection to authors. Prussia had meanwhile, under the King's Order in

Council of 1827, arranged in 1827-29, reciprocal relations with

thirty-three out of the thirty-eight states and free cities in the

German confederation, and with Denmark for its German provinces, through

which the citizens of other states enjoyed the same privileges as

natives; and in 1833 the same reciprocal provisions were extended to

cover Prussian provinces outside the federation. Many of the early

in 1837 Prussia passed an improved law making the term life and thirty

years and granting protection to citizens of foreign countries in the

same proportion that works published in Prussia were therein protected.

Thus, up to the time of the Empire, copyright was protected as a matter

partly of federal and partly of state legislation.

{Sidenote: Laws of 1901-07}

and thirty years, and furthermore for posthumous works at least ten

years from publication; and for anonymous, pseudonymous and corporate

works, thirty years. Copyright in photographs is for ten years only, and

in any event ceases ten years after the author's death. The copyright

term is reckoned from the end of the calendar year of an author's death

or of publication. In joint authorship, the term is from the death of

the last surviving author. Playright is, inferentially, under like terms

and conditions. The author of anonymous or pseudonymous works, on

registering his name, may obtain protection for the full term. In works

published in parts, the publication of the last part determines the

authors; in composite works the originator of the work as a whole, or if

no such editor is mentioned, then the publisher, is regarded as author;

if a literary work is accompanied by music or by illustrations, the

author of each part is regarded as originator of his separate work; in

inseparable composite works, a partnership arrangement is recognized by

the law. No formalities are required, but registration of the author's

name on its disclosure in the case of an anonymous or pseudonymous book,

may be made in the register to be kept by the Municipal Council of

Leipzig for a fee of a mark and a half (36 cents) and expense of

official publication originally in the _Boersenblatt_, but since a law of

1903 in the _Reichsanzeiger_. Translations, adaptations, etc., are

protected as original works. Official documents, public speeches, etc.,

are not protected, and reproduction of newspaper articles, except those

of a scientific, technical or recreative character, is permitted, unless

reservation is made, on condition of acknowledgment and that the meaning

shall not be distorted. Extracts are permitted under specified

limitations. Poems may be used as set to music unless distinctively

intended for that purpose; and musical compositions, except operas and

the like, may be played for charity purposes or by musical societies for

members and their families.

{Sidenote: Art provisions}

In the case of a work of art, reproduction for personal use and

gratuitously is permitted, but during an author's life only by

photographic means; this permission authorizes only, as to a work of

architecture, reproduction of exterior aspect and not of the work upon

the ground. The person ordering a portrait is entitled to reproduce it,

except on agreement to the contrary. Reproduction and exhibition are

permitted of portraits in contemporary history or when accessories, as

in a landscape or part of a procession or assemblage, or in the interest

of art if not made to order,--provided this is not to the injury of the

reputation of the original; or in the interest of justice or public

safety. Reproductions of works standing permanently in public places are

permitted, but these may not be affixed to a work of architecture.

{Sidenote: Piracy}

Piracy is punished by damages and a statutory fine, or imprisonment in

case of intentional infringement, but proceedings must be commenced

within three years. The law provides for committees of experts in the

several states under regulations of the imperial government to act as

arbiters or to advise the justices; and there is final appeal to the

Supreme Court of the Empire.

{Sidenote: Foreign citizens}

The law protects all works of a subject of the German Empire and works

of aliens, if published within the Empire before previous publication

elsewhere, the latter clause a change from the former practice of

protecting works by a foreigner if published by a firm having a place of

business or a branch within the Empire.

{Sidenote: German foreign relations}

Germany was a party to the Berne convention and to the Paris acts, and

ratified July 12, 1910, the Berlin convention. This ratification was

made possible by an act of May 22, 1910, modifying domestic copyright to

conform with the provisions of the Berlin convention, and incidentally

repealing and replacing sec. 22 of the law of 1901, regarding mechanical

music reproduction, as fully stated in the chapter on that subject. On

July 12, 1910, the Emperor promulgated an ordinance providing for the

application of the law, and both the Berlin convention and this new law

became effective September 9, 1910.

Germany has treaties outside the Union with Austria-Hungary (1899), has

special treaties beyond the provisions of the Union on the "most favored

nation" basis, made in 1907 with Belgium, France, and Italy, and has

been a "proclaimed" country in reciprocal relations with the United

States since January 15, 1892. By proclamation of December 8, 1910,

reciprocal relations as to mechanical music reproductions were also

proclaimed between Germany and the United States.

{Sidenote: Austria-Hungary}

In Austria-Hungary, the dual states of that empire have separate

Hungarian on the law of 1884. Copyright in Austria is dependent on

publication within the country and citizenship or reciprocal relations;

in Hungary on publication by a Hungarian publisher and two years'

residence in the case of foreign authors whose country is not in

reciprocal relations. In Austria the general term is for life and thirty

years, in Hungary life and fifty years, or for corporate, anonymous and

like works, thirty or fifty years respectively, unless the anonymous

author discloses his identity. Registration, in Austria at the Ministry

of Commerce, and in Hungary at the Ministry of Agriculture, is required

only for anonymous and pseudonymous works, and in Hungary in other

special cases, as plays. The right of translation must be reserved on

the work, for specified languages or in general, and must be exercised

within stated periods; notice is also required on photographs, and in

Austria on musical works to protect performing right. Posthumous works,

if published in the last five years of the thirty or fifty year term,

are protected for five years from publication. Photographs are protected

only for ten years in Austria and five years in Hungary. Collections of

telegraph news, as printed in a newspaper, are protected in Hungary.

Austria and Hungary have a treaty with each other (1907), and jointly

with Great Britain (1893), Germany (1899), France (1866-1884) and Italy

(1890), involving in the case of Hungary registration in Hungary as well

as in the country of origin. Austria has also treaties with Belgium

(1910), Denmark (1907), Roumania (1908), and Sweden (1908), and has been

in reciprocal relations with the United States as a "proclaimed" country

since December 9, 1907; Hungary is negotiating reciprocal relations with

the United States, but has otherwise no separate treaties. Neither

Austria nor Hungary is a unionist country.

{Sidenote: Switzerland}

Switzerland, under its federal constitution of 1874 and the law of 1883,

provided copyright for life and thirty years or for corporate and like

works thirty years, giving protection for the full term to translations

if the right to translate is exercised within five years from

publication. Photographs were protected for five years only. No

formalities are required, though an author has the option of registering

his work, with the exception that registration in the Office of

Intellectual Property is required within three months from publication

for the protection of posthumous and official publications and

photographs. Notice of reservation of playright is required on printed

copies. Switzerland was an original party to the Berne convention,

accepted the Paris acts and ratified the Berlin convention without

reservation in 1910. It has had reciprocal relations with the United

States as a "proclaimed" country since July 1, 1891, and included

{Sidenote: Scandinavian countries}

The Scandinavian countries, Denmark, Norway and Sweden, in which last

fifty years as the general term, or fifty years for corporate and like

works, an anonymous author having the right to the full term on printing

his name in a new edition or declaring it by registration. Photographs

are protected for five years--in Norway for fifteen years. The right to

translate into a Scandinavian language is protected for the full term;

into other languages for the full term in Norway, but in Denmark and

Sweden only for ten years from the end of the year of publication of the

original work, with an addition in Denmark that a translation published

within these ten years protects the author for the full term against

unauthorized translation into that language. No formalities are

requisite, but in Norway the printer is required, though default does

not affect copyright, to deposit a copy with the university library in

Christiania within a year of publication. Notice is required, however,

on photographs, and except in Sweden, to reserve right of musical

performance. Denmark, by two laws of 1911, requires deposit and

registration of photographs. Sweden makes the exceptions that works of

art are protected for life and ten years and that playright is for life

and thirty years, or for anonymous plays, only for five years, unless

the author meantime discloses his identity. In Denmark and Norway right

of recitation and in Sweden playright must be specifically reserved.

{Sidenote: Scandinavian foreign relations}

Denmark's domestic copyright is covered by laws of 1865, 1902, 1904,

1908 and 1911, Norway's by those of 1877, 1882, 1893, 1909 and 1910,

Sweden's by the general laws of 1897, codifying those of 1877, etc.,

respectively for literary, art and photographic works, and amendatory

acts of 1904 and 1908. All three are unionist countries. Denmark remains

under the Berne-Paris agreement, not having accepted the Berlin

convention. Norway became party to the Berlin convention by ratification

September 4, 1910, with reservations as to architectural works, in which

it adheres to article IV of the Berne convention; as to newspaper and

review articles, in which it adheres to article VII of the Berne

convention; and as to the retroactive provision, in which it adheres to

article XIV of the Berne convention. Sweden remains under the Berne

convention and the interpretative declaration of Paris, not having

accepted either the Paris additional act or the Berlin convention. Each

Scandinavian country has a special copyright treaty with the other two

(1877, 1879, 1881). Denmark has also a treaty with Austria (1907) and

Sweden with Austria (1908). Denmark has had reciprocal relations with

the United States as a "proclaimed" country since May 8, 1893, Norway

since May 25, 1905, and as to mechanical music since June 14, 1911, and

Sweden since June 1, 1911. A special law for Iceland, embodying in

general the Danish provisions, was passed in 1905, and the Danish law

may be taken as covering the other Danish colonies, as the Danish West

Indies, in lack of special legislation.

{Sidenote: Russia}

Russia early gave, in 1828-30, enlightened protection to authors,

providing for a term of life and twenty-five years, with an added ten

years under specified circumstances, and protecting an author's

publisher except on fulfillment of the author's contract. Under the

civil code of 1887, copyright was extended to life and fifty years, but

playright was only nominally protected and the protection of

translations was negatived by a decision that translations must be word

for word. The new law sanctioned March 20, 1911, is a comprehensive and

detailed code providing copyright for life and fifty years, except that

certain collections are only protected for life and twenty-five years

and periodicals for twenty-five years, photographs for ten years and

translations on notice of reservation for ten years, the right to

translate being exercised within five years from publication. Playright

is protected, but on a musical work notice of protection must be

printed. A photograph must bear notice of its purpose, date and author's

name and domicile. Protection is accorded to all works published in

Russia and works published by Russian subjects domiciled elsewhere; and

provision is made for treaties on reciprocal conditions. The law treats

also of relations between authors and publishers. Russia, though

represented at Berlin, has as yet no international relations.

{Sidenote: Finland}

Finland, formerly an independent grand duchy, protects copyright under

its law of 1880 for a general term of life and fifty years, with

exceptions as to photographs, etc., and with provisions as to

translation into the Finnish and Scandinavian languages similar to those

of Scandinavian countries. Other provisions are similar to those of

Russia. It has no exterior copyright relations.

{Sidenote: Spain}

Spain passed a general copyright code in 1879, which applied not only to

the Peninsula, but _ultramar_ to Cuba and the other colonies, and became

a model for later legislation in several Spanish-American countries,

under which code detailed regulations were promulgated in 1880. This

code is enforced through the penal code of 1870 and the civil code of

1889. Ordinances from 1893 to 1910 deal with the regulations as to

details. Spain grants copyright for life and eighty years on condition

of registration by deposit of three signed copies with the Register of

Intellectual Property in the Ministry of Agriculture, or in the

provincial centres for registration, within one year from publication.

In default of registry within the year, any one may publish the work for

ten years; and if after the ten years the author fails to register

within the ensuing (twelfth) year, the work falls into the public

domain. Protection is given for an indefinite term to works issued by

the state and, to the extent of their legal existence, those from

corporate bodies. A work assigned within the life of the author, remains

in the possession of the assignee during the full term unless there are

natural heirs (_herederos forzosos_--"forced" or inalienable heirs), in

which case the right reverts to such heirs twenty-five years after the

death of the author, on registry of such right and proof of succession

under the regulations accompanying the act. This, according to the

official Spanish print, is for the remaining fifty-five years--not, as

in a French version, for twenty-five years only. A musical work is

protected with reference to other instruments and to other forms in a

provision so broad that it is possibly applicable to mechanical music

reproductions. Writings and telegrams inserted in periodicals may be

reproduced unless this is expressly forbidden by notice at the title or

at the end of the article--a provision which implies the protection of

articles and telegrams in case of such notice of reservation. Works not

republished for twenty years fall into the public domain, except in the

case of unprinted dramatic or musical works,--unless the proprietor

shows that during such period he has kept copies on sale. The protection

of domestic law is extended by the terms of the law to citizens of

countries having reciprocal relations, without additional formalities.

{Sidenote: Spanish foreign relations}

Spain was one of the original parties to the Berne convention, accepted

the Paris acts and adopted the Berlin convention without reservation,

through ratification by the King September 5, 1910. Spain has treaties

with Portugal as well as with Belgium, France and Italy, all four made

in 1880 on the "most favored nation" basis; it has relations with the

United States under treaties of 1895, 1898 (the peace treaty), and 1902,

and as a "proclaimed" country since July 10, 1895; and has treaties also

with Colombia (1885), Costa Rica (1893), Ecuador (1900), Guatemala

(1893), Mexico (1903) and Salvador (1884), mostly on the "most favored

nation" basis, and relations under the Montevideo convention with

Argentina and Paraguay (1900).

{Sidenote: Portugal}

Portugal, under its civil code of 1867 and penal code of 1886, grants

whose countries grant reciprocal relations. The foreign author, to

protect a translation of his work, which protection is for ten years

only, must provide such translation within three years. Translations of

non-copyright works by a native translator are protected for thirty

years. Two copies must be deposited before publication at the Public

Library, or in the case of dramatic and musical publication in the Royal

Conservatory in Lisbon. Portugal as a republic acceded to the Berlin

convention from March 29, 1911. It has additional relations with Italy

(1906) and Spain on the "most favored nation" basis (1880); and

reciprocal relations with the United States as a "proclaimed" country

since July 20, 1893, and with Brazil (1889).

{Sidenote: Italy}

Italy grants copyright under its law of 1882,--codifying its original

law of 1865 and the dramatic law of 1875,--as promulgated by royal

decree September 19, 1882, to become effective in 1885, and its civil

code of 1889. It assures full copyright for life or forty years,

whichever the longer. After forty years from first publication or, if

the author live beyond that date, after his death, a second term of

forty years begins, in which any person, on duly declaring his

intention, may republish a work, on condition of paying five per cent

royalty to the copyright proprietor. The state may expropriate any work

after the death of an author on paying to the proprietor a compensation

named by three experts. Government and society publications are

translation for ten years. Playright is for eighty years. Three copies

of the printed work should be deposited at the prefecture of the

province within three months, in default of which, infringement previous

to deposit cannot be punished; and if deposit is not made within ten

years, the author is understood to waive his rights. With the deposit

copy a declaration of reservation of rights should be filed, for

publication in a semi-annual list in the official gazette. Notice is

required to reserve rights in periodical contributions. A manuscript

copy of an unpublished play should be submitted within three months from

first performance for _vise_, which manuscript is then returned. By the

law of 1910, as to legal deposit, three copies must be delivered to the

_Procureur du Roi_ in the district of the printing establishment for

transmission to the official libraries in Florence, Rome and the

respective province; failure to make such deposit does not affect the

extended copyright to foreign works, on relations of reciprocity,

without treaty arrangements and without additional formalities.

{Sidenote: Italian foreign relations}

Italy was an original party to the Berne convention and accepted the

Paris acts, but has yet to ratify the Berlin convention. It has treaties

with Austria-Hungary (1890), Montenegro (1900), Portugal (1906),

Roumania (1906), San Marino (1897); also special treaties with Spain

(1880), France (1884), and Germany (1907), all on the "most favored

nation" basis. It has had reciprocal relations with the United States as

a "proclaimed" country since October 28, 1892, and has also treaties

with Colombia (1892), with Cuba (1903) and Mexico (1890) on the "most

favored nation" basis, and with Nicaragua (1906); and also under the

Montevideo convention, relations with Argentina and Paraguay (1900).

{Sidenote: San Marino}

San Marino, the tiny state enclosed within Italy, has pledged itself by

the copyright provisions in its treaty with Italy (1897) to protect all

works protected in Italy, by application of the Italian law.

{Sidenote: Monaco}

Monaco, under laws of 1889 and 1896, provides copyright for life and

fifty years with the peculiar provision that copyright on anonymous and

pseudonymous works extends fifty years beyond the death of the

publisher, who is reputed author. No formalities are required except

notice of reservation in respect to articles in periodicals. Monaco

acceded to the Berne convention, in 1889, accepted the Paris acts and

ratified the Berlin convention without reservation, December 19, 1910.

{Sidenote: Greece}

Greece originally provided for copyright protection under its penal code

of 1833, with a term of fifteen years subject to royal extension. By the

law of 1867 the printer of a work was required to deposit with the

National Library two copies within ten days of publication, failure

involving a fine of at least ten drachmas, but not forfeiture of

copy for the Library of Parliament and a fourth for the local public

library, with authority to transmit through the post. A dramatic

life and forty years and preventing modification of a play by an

assignee. Greece has no international relations.

{Sidenote: Montenegro}

Montenegro, though it has no specific domestic copyright law, and only

gives uncertain protection under its customary law and civil code of

1888, has treaties with France (1902) and Italy (1900). It had acceded

to the Berne convention July 1, 1893, and accepted the Paris acts, but

withdrew from the International Copyright Union April 1, 1900, "from

motives of economy."

{Sidenote: Roumania and other Balkan states}

The Balkan states are led in copyright protection by Roumania, possibly

owing to the influence of the literary queen "Carmen Sylva," which

country, under the press law of 1862 and penal code of 1864, has

protected copyright and playright, including probably translation, for

life and ten years. Written registration is required at the Ministry of

Instruction, and deposit of four copies was also required, though not on

penalty of forfeiture of copyright. A later law, of 1904, repeals the

deposit requirement. Roumania has copyright treaties with Belgium

(1910), France (1907), these on the "most favored nation" basis, Austria

(1908) and Italy (1906). Bulgaria and Servia seem to give no protection,

except that accorded in Bulgaria by its penal code of 1896, and have no

international relations.

{Sidenote: Turkey}

Turkey, which gave some protection to authors so far back as its penal

code of 1857, passed in 1910 a new copyright code providing for books,

drama and music a term of life and thirty years, in which last the

children, widow or widower, the parents and the grandchildren or their

descendants should benefit in equal shares; and for works of art,

including architecture, a term of life and eighteen years. Posthumous

works are protected from publication for the years above stated.

translations are protected, but the term extends only fifteen years

after the death of the translator. The assignment of publishing right

does not include playright unless specifically stated. Reprint of

periodical articles, unless forbidden, and extracts from books "in case

of urgency or to the end of public utility," may be made on

acknowledgment of the source. Reprint of works out of print may be

licensed by the Ministry of Public Instruction. Registration is

requisite with deposit of three copies, in the case of reproduced works,

with the Ministry of Public Instruction, at Constantinople, or in its

provincial offices on written application and a fee of a quarter of a

Turkish pound, for which a certificate is issued. An annual publication

of the copyright entries is provided for. The law is not in terms

confined to Turkish subjects, but it may by the nature of Turkish

legislation apply only within the Turkish Empire, though there seems to

be hope that Turkey may adhere to the Berlin convention. Turkey is

otherwise without international relations.

{Sidenote: Japan}

Japan, the only oriental power which is a unionist country, adopted a

general copyright code in 1899 (March 3, as applied by ordinances of

June 27 and 28), modifying a law of 1877, and in the same year (July 15)

ratified the Berne-Paris agreements and became a member of the

International Copyright Union. Amendatory acts were adopted in 1910, on

June 14-15, broadening the scope to include architecture and providing

as to details of registration. Under domestic legislation first

publication in Japan is the only requisite for copyright, but

registration must be made in the Ministry of the Interior before action

for infringement can be brought, and by disclosure of name to obtain the

full term for anonymous and pseudonymous works. Registrations are

printed in the official gazette. Protection is for life and thirty

years, or thirty years for anonymous, posthumous and corporate works.

The right of translation is protected for ten years, and translations

are protected for the full term; photographs for ten years only. Titles

are protected in copyrighted works, but not general titles. Periodical

contributions must be protected by notice. Japan accepted the convention

of Berlin with reservations as to the exclusive right of translation, in

which it adheres to Article V of the Berne convention as revised at

Paris, and as to the public performance of musical works, in which it

adheres to Article IX of the Berne convention. Japan has treaties with

China (1903) and with the United States (November 10, 1905, "proclaimed"

May 17, 1906), which, however, excepts translations, and also special

treaties of August 11, 1908, covering Japanese protectorates in Korea

and China.

{Sidenote: Korea}

Korea was formerly without copyright provisions, except as given by the

above-named treaty and similar British provisions as to the consular

court at Seoul, but since it has become practically a Japanese

possession, it has been included by Japanese ordinance of 1908 under

Japanese copyright law.

{Sidenote: China}

China promulgated, December 18, 1910, its first domestic copyright

provisions, establishing a term of life and thirty years, on condition

of registration by deposit of two copies at the Ministry of the Interior

or corresponding provincial office, with a fee of five dollars. The

protection does not include the exclusive right to translate foreign

works into the Chinese language, although individual translations may be

protected. Photographs, unless included in writings, are protected only

for ten years from date of registration. These provisions require

approval to be made effective. China has a treaty with Japan (1903) and

one of like date (October 8, 1903) with the United States, effective

from January 13, 1904, protecting for ten years books, maps, prints, or

engravings, "especially prepared for the use and education of the

Chinese people" or "translation into Chinese of any book," but Chinese

subjects are to have liberty to make "original translations into

Chinese," so that the treaty affords little protection. By treaty with

Japan (August 11, 1908) Japan's copyright protection is extended where

it has extraterritorial jurisdiction, as in Canton and other places in

China. By British Orders in Council of 1899, 1907, copyright protection

against infringement by a British subject may be afforded by the

consular court at Shanghai to foreign as well as British suitors under

specified conditions.

{Sidenote: Siam}

Siam passed a literary copyright law in 1901, giving identical rights

with those in any other property for life and seven years, or for

forty-two years, whichever the longer, on the conditions of printing and

publication within the country, registration within a year and deposit

of four copies. Siam has no treaty relations, but works printed and

first published there possibly would have the benefit of the law.

British copyright protection is also extended through British

consulates.

{Sidenote: Asia otherwise}

Persia and other native-governed countries seem to have no copyright

protection, although Persia was represented at the Berlin conference.

colonies is covered in the preceding chapter on the British dominions.

The Dutch East Indies have copyright protection under Dutch law, and

Indo-China under French law. The Philippine Islands, like the Sandwich

Islands (Hawaii), have copyright protection under United States law.

{Sidenote: Tunis, etc.}

Tunis, a protectorate of France but not a French colony, long the only

unionist country in Africa, has domestic protection under its law of

1889, following in general that of France, with a term of life and fifty

years. It was one of the original parties, as a separate power, to the

treaty of Berne, accepted the Paris acts and ratified the Berlin

convention with reservation, September 30, 1910, like France, as to

works of applied design, in which it adheres to the stipulations of the

previous convention; it has no other foreign relations. Algiers, a

French colony, is under French law and international relations. Morocco

and other native states seem to be without copyright protection.

{Sidenote: Egypt}

Egypt, under the protectorate of Great Britain but not a British

possession technically, is without domestic legislation, except that its

penal code of 1884-89 forbids piracy, and it is not included under

British relations. But under a crude sort of customary law and this

penal code, the courts enforce rights of foreigners as well as of

natives by the protection of their works for an indefinite term. The

rights of French citizens in plays and music have been enforced through

the French consular court, and in recent years the mixed courts at Cairo

and the Court of Appeal have exercised copyright jurisdiction, "under

the principles of natural justice and the laws of equity." In the

leading case of the Societe des gens de lettres _v._ Egyptian Gazette,

in 1889, the Court of Appeal laid down the principle that "copyright is

a veritable right of property founded on labor," and on this ground has

upheld the right of literary, dramatic and musical authors and of

artists to prevent reproduction.

{Sidenote: Liberia}

Liberia seems to have no domestic copyright law recorded, and probably

protection, national and international, is under customary law without

formalities. It was represented as an independent power at the Berne

convention and signed the original convention, but never became a party

to it by ratification; it, however, adopted the Berlin convention by

ratification and is now a member of the International Copyright Union.

{Sidenote: Africa otherwise}

The Congo Free State seems to cover copyright offenses by its

extradition treaties with Belgium (1898) and France (1899) to the extent

of including in the list of offenses fraudulent application to any art

object or work of literature or music, of the name of an author, or any

distinctive sign adopted by him.

colonies is covered in the preceding chapter on the British dominions.

{Sidenote: Latin America}

In Latin America provision for copyright protection had generally been

made by the several states, for various terms, in some cases in

perpetuity, previous to a movement for international relationship which

began with the Montevideo convention of 1889, for South American states

only, reached a further step in the convention of Mexico City, 1902, was

not substantially advanced by the amendatory treaty proposed at Rio de

Janeiro, 1906, which never became practically operative anywhere, and

culminated in the Buenos Aires convention of 1910, which was ratified by

the United States Senate February 16, 1911, but has yet to be ratified

by the Latin countries. Five South American states are bound together

under the Montevideo convention as ratified by Argentina (1894), Bolivia

(1903), Paraguay (1889), Peru (1889), and Uruguay (1892).

The United States has relations with Mexico (1896), Costa Rica (1899),

Cuba (1903), Chile (1896), and by ratification in 1908 of the Mexico

convention of 1902, with Costa Rica, Guatemala, Honduras, Nicaragua,

Salvador and possibly Dominican Republic, and will come into relations

under the Buenos Aires convention of 1910, with any power ratifying that

convention.

{Sidenote: Mexico}

Mexico, under the guarantees of property in its constitution of 1857,

and the specific and elaborate copyright provisions of its civil code of

1871, as modified by that of 1884, grants copyright in perpetuity and

playright for life and thirty years as the general term, with

complicated modifications and exceptions. In the case of anonymous and

pseudonymous works, rights in perpetuity are to the publisher and his

successors, pending disclosure of the author, who must record his name

in a sealed envelope. The right of translation is protected in

perpetuity except for works of non-residents published abroad, then

limited to ten years. Corporate works are protected for twenty-five and

official publications for ten years only. Registration is required

through application to the Minister of Public Education and deposit of

two copies is obligatory, one in the National Library and one in the

Public Archives. A third copy is usually expected for the Library of the

Ministry. The right to copyright holds for ten years from publication.

Reservation is required of right of translation and of other specified

rights, by notice on the printed work. Protection is conditioned on

residence, reciprocity or first publication within Mexico. Private

letters may not be published without consent of both correspondents or

their heirs, except for proof of right or in the public interest, or for

the progress of science. Mexico does not seem to be a party to any

convention, not even that of Mexico City, but has had reciprocal

relations with the United States as a "proclaimed" country since

February 27, 1896, and has treaties with the Dominican Republic (1890)

and Ecuador (1888), and with Belgium (1895), France (1886), Italy

(1890), and Spain (1903), all on the "most favored nation" basis. To

obtain Mexican copyright, it seems necessary to execute a power of

attorney, validated by a Mexican consul, to a representative in Mexico

City for the registration and deposit at the Ministry.

{Sidenote: Central American states: Costa Rica}

{Sidenote: Guatemala}

{Sidenote: Honduras}

{Sidenote: Nicaragua}

{Sidenote: Salvador}

Of the five nations of Central America, Costa Rica, under penal and

civil codes of 1880 and 1888 and a copyright law of 1896, grants

provisions for return to heirs after twenty years and other variations

after the Spanish model, on registration and deposit within a year of

three copies of a printed work at the office of Public Libraries, on

condition of residence or reciprocity. Guatemala, under a decree of

1879, grants copyright for literary works in perpetuity on registration

and deposit of four copies at the Ministry of Public Education to

"inhabitants of the Republic,"--with the curious provision that an

assignee cannot prevent republication with "essential modifications" by

the author. Right of translation must be reserved by notice. A sealed

envelope with name of author must accompany an anonymous book. Honduras,

under its constitution of 1894, has provisions in its civil and penal

codes of 1898 guaranteeing to an author of a literary, scientific or

artistic work the general property rights, pending passage of a

under its civil code of 1904, grants copyright in perpetuity on

registration and deposit of six copies with the Ministry of Agriculture.

Right of translation must be reserved by notice. Salvador, under its

constitution of 1886 and law of 1900, grants copyright on works

published in Salvador for life and twenty-five years, or for corporate

works fifty years from publication on deposit of one copy with the

Minister of Agriculture before publication, with the exceptional

provision that if the heirs renounce their rights or fail to make use of

them within a year from the author's death, the work falls into the

public domain; the translator of a Latin or Greek work is protected as

an author, and the government may grant five-year licenses for the

reprint with author's permission of "interesting works," presumably

those published elsewhere.

{Sidenote: Interstate and international relations}

In 1894-95, and again in 1897-1901, interstate treaties, incidentally

covering copyright, were negotiated; but interstate and international

relations are now covered by the participation of the five nations, as

well as the United States and the Dominican Republic, in the Mexico

convention of 1902 and by the treaty of peace made by these five Central

American states at Washington, December 20, 1907. There is some question

under the treaty of 1907 whether protection is assured in each state to

others than residents, but probably all citizens of the five states are

protected throughout all. To secure protection under the convention of

1902, an American citizen should apply for an additional certificate

from the U. S. Copyright Office for each country, which after validation

by the State Department is sent with one deposit copy for each country

to the respective American legations, through which official

acknowledgment will be returned. Costa Rica has had reciprocal relations

with the United States as a "proclaimed" country since October 19, 1899,

and has treaties with France (1896) and Spain (1893); Guatemala with

France (1895) and Spain (1893), the latter on the "most favored nation"

basis; Nicaragua with Italy (1906); and Salvador with France (1880) and

Spain (1884).

{Sidenote: Panama}

Panama grants copyright under the constitution of 1904, which adopted

and made part of Panamanian law the Colombian copyright law of 1886,

which is summarized in the paragraph on Colombia. The Canal Zone is

under United States law through a War Department order of 1907.

{Sidenote: Cuba}

Cuba, which as a Spanish colony came under the Spanish act of 1879, has

domestic protection under this act as applied by four military

ordinances, 1900-1902, during the United States protectorate, and

continued under its insular government. In the third ordinance, of June

13, 1901, it was provided that existing copyrights under the Spanish law

of 1879 should be valid during their term, and also that copyright as

well as patents granted by the United States shall have insular

protection on deposit of a copy of the certificate. Registration is made

at the Registry in the Department of State within one year of

publication, accompanied, if a foreign work, by certificate of copyright

in the country of origin, and deposit should be made of three copies for

preservation in the National Library, the University and the Public

Archives. On these conditions, under the military ordinance of 1900,

authors of foreign scientific, artistic and literary works or their

agents or representatives enjoy protection in the case of new works.

Regulations of 1909 prescribe the forms of application for domestic and

for foreign works. To claim Cuban copyright, an American should obtain

an attested copy of the copyright certificate and transmit this, with a

power of attorney in Spanish validated by a Cuban consul, and three

deposit copies, to a representative in Havana, who must deposit the

certificate with an attested Spanish translation and the three copies at

the Registry. Copyrights by Spanish subjects previous to the treaty of

peace with the United States, ratified in 1899, remain valid by virtue

of a specific article in the treaty. Cuba has been in reciprocal

relations with the United States as a "proclaimed" country since

November 17, 1903, and has a treaty with Italy (1903) on the "most

favored nation" basis. It is reputed to have ratified the Pan American

convention of 1902, but possibly only the industrial treaty.

{Sidenote: Haiti}

Haiti, which gave copyright protection as early as 1835, adopted in 1885

a copyright law with some unusual features. An author holds exclusive

right during life; the widow through her life; the children for twenty

years further, or other heirs, if there are no children surviving, for

ten years. Unauthorized reprints are confiscated on the complaint of the

proprietor of the copyright; and the author recovers from the reprinter

the price of a thousand, or from a bookseller of two hundred copies,

reckoned at the retail price of the author's edition. Deposit is

required of five copies within twelve months from publication at the

Department of the Interior. Haiti has the unique distinction in Latin

America of being a unionist country; it was originally a party to the

Berne convention, accepted the Paris acts and adopted the Berlin

convention without reservation. It has no relations with the United

States and no treaties.

{Sidenote: Dominican Republic}

The Dominican Republic provides copyright protection under its

constitution of 1896, has a treaty with Mexico (1890) on the "most

favored nation" basis, and ratified the Pan American convention (though

possibly only the industrial treaty) of 1902, June 15, 1907.

{Sidenote: West Indian Colonies}

Jamaica and the other British islands and colonies along the Atlantic

and Caribbean seas have copyright protection under imperial and to some

extent local laws, as already noted; Porto Rico is under the provisions

of United States law and the Danish and Dutch West Indian colonies are

under the respective laws of their nations.

{Sidenote: Brazil}

Brazil, under the constitution of 1891 and the law of 1898 and

regulations of 1901, grants copyright for the general term, inclusive of

photographs, of fifty years from the first of January of the year of

publication, with a term of ten years for the right of translation and

playright. Posthumous works are protected within fifty years from the

death of the author. Assignments are valid only for thirty years, after

which copyright reverts to the author. Written application for

registration is requisite at the National Library, and deposit of one

copy of a printed book or play must be made there within two years.

Reservation of royalty for playright must be made on a printed work.

Protection is confined to a native or resident or a Portuguese author of

a work written in Portuguese--the latter in accordance with a treaty of

reciprocity with Portugal (1889), the only treaty.

{Sidenote: Argentina}

Argentina, which under its constitution of 1853 and civil code of 1869

protected an author's productions as general property, adopted in

September, 1910, a copyright law, as an application of common law,

providing for a term of life and ten years, or in the case of posthumous

works twenty years from publication. Protection is comprehensive of all

classes of intellectual property, and extends to all forms of use

without special reservation. By Presidential decree of February 4, 1911,

a Section of Library deposit was established as a division of the

National Library. Registration is required by deposit of two printed

copies or of an identifying reproduction within fifteen days from

publication for works published in the capital, or thirty days in the

provinces, this including foreign works published within the country,

publication meaning the offering for sale therein. The law specifically

applies to authors of other countries with which Argentina has

international relations, deposit in Buenos Aires being then not required

where the formalities of the country of origin have been fulfilled.

Argentina's international relations are dependent chiefly on the

Montevideo convention of 1889, as ratified by Argentina with respect to

Paraguay, Peru and Uruguay in 1894, Bolivia in 1903, and with respect to

Belgium in 1903, France in 1896, Italy and Spain in 1900.

{Sidenote: Paraguay and Uruguay}

Paraguay and Uruguay, like Argentina, long protected intellectual

property as general property. Paraguay's constitution of 1870 secures

exclusive property to an author, and a new penal code, promulgated in

1910, assures copyright on all classes of intellectual property, on

registration in the public registries with prescribed fees, and punishes

piracy by fine of double the profit and imprisonment. Uruguay in its

civil code of 1868 declared that the productions of talent or intellect

are the property of their authors, to be regulated by special law, but

no such law has been passed. Both countries have relations with the

other South American states parties to the Montevideo convention of

1889; Paraguay has also the same relations as Argentina with the

European countries above cited. The statement that Paraguay is a party

to the Mexico City convention of 1902 seems a misapprehension arising

from the fact that her representative signed _ad referendum_.

{Sidenote: Chile}

Chile, under the constitution of 1833 and law of 1834 and its civil code

of 1855 and penal code of 1874, protects copyright including playright

for a general term of life and five years thereafter, which may be

extended an additional five years, except for playright, by action of

the government, corporate works for forty and posthumous works for ten

years. Deposit of three copies is required at the National Library in

Santiago. Protection is extended to foreign works [first?] published in

Chile; a Chilean-made edition of a work already published abroad may

have protection for ten years. Chile has reciprocal relations with the

United States as a "proclaimed" country since May 25, 1896; by a

provision in the treaty respecting parcels post, piratical copies of

works copyright in the country of destination are to be excluded. Chile

ratified only the ineffective Rio convention of 1906.

{Sidenote: Peru}

Peru, under its law of 1849 and the constitution of 1860 and penal code,

grants copyright including playright for life and twenty years

thereafter. Anonymous and pseudonymous works may be protected for the

full term by deposit of the true name in a sealed envelope. Posthumous

works are protected for thirty years. Deposit is required of one copy in

the public library and one copy in the department Prefecture. Protection

is probably confined to an inhabitant of Peru, but Peru has reciprocal

relations under the Montevideo convention as ratified October 25, 1889,

with Argentina, Bolivia, Paraguay and Uruguay.

{Sidenote: Bolivia}

Bolivia, which protected intellectual property by its penal code of

1834, and later by a copyright law of 1879, adopted a brief copyright

code, including playright, in 1909, providing a general term of life and

thirty years, with the peculiar provision that the publisher of a work

of unrecognized authorship hitherto unpublished may have protection for

twenty years. Registration is required at the Ministry of Public

Education and deposit of one copy of printed works must be made within

one year of publication in the public libraries, in default of which the

work falls into the public domain. Bolivia has reciprocal relations

under the Montevideo convention as ratified November 5, 1903, with

Argentina, Paraguay, Peru and Uruguay, and also international

arrangements with France (1887).

{Sidenote: Ecuador}

Ecuador, under the constitution of 1884 and law of 1887, grants

twenty-five years. Anonymous and pseudonymous works are protected fifty

years beyond the death of the publisher, unless the author meantime

substitutes his name; posthumous works for twenty-five years. There are

special provisions for terms of fifty years in the case of translations,

adaptations, compilations, etc., and for twenty-five years for editions

of works of undefined authorship. Registration is required with notice

of reservation of playright within six months from publication or three

months from performance of an unpublished play. Three copies of a

printed work must be deposited with the registrar for the use of the

Minister of Public Education, the National Library and the provincial

library. Titles of periodicals are specified as copyrightable.

Assignment must be registered to become operative. Protection is

seemingly confined to a citizen of Ecuador, but it is expressly provided

that a foreign author may assign right of translation or playright to a

citizen of Ecuador, who may then prevent infringement. Ecuador has

reciprocal relations with Mexico (1888), as also with France (1898,

1905) and Spain (1900), all on the "most favored nation" basis.

{Sidenote: Colombia}

Colombia, under the Constitution and law of 1886, and the civil code of

1873 and penal code of 1890, protects copyright, including playright,

for life and eighty years, and for the legal existence of a corporate

body, with the provision as in Spain respecting natural heirs.

Registration is required within a year from publication or performance,

at the Ministry of Public Education, with deposit of three copies, one

for the Ministry and two for the National Library. If a work is not

registered within the year, it falls into the public domain for ten

years, but can thereafter be protected by registration within the

succeeding year. Non-Colombian authors seem not to enjoy protection of

the right of translation for a work printed in a country of foreign

language. Colombia has treaties with Spain (1885) on the "most favored

nation" basis, Italy (1892) and Switzerland (1908).

{Sidenote: Venezuela}

Venezuela, under the law of 1894 and penal code of 1897, protects

considered the author in the case of anonymous and pseudonymous works

pending legal proof of the identity of the author. In posthumous works

protection is in perpetuity to the heirs or assigns. The right is

secured by request to the district governor or state president for the

issue of a patent with registry of title and verbal oath that the work

has not been previously published within Venezuela or elsewhere; the

patent certificate must be printed on the back of the title-page, and

must be published at least four times in the official gazette. Deposit

must be made of six copies at the Registry, two copies going to the

Minister of Agriculture for the National Library. Protection is not

specifically confined to Venezuelans, and seems to depend on first

publication, but assignment to a citizen of Venezuela may be desirable.

Venezuela has no foreign relations.

XXII

BUSINESS RELATIONS OF COPYRIGHT: AUTHOR AND PUBLISHER

{Sidenote: Copyrights in their business relations}

Business relations, founded on copyright, are chiefly those between

author and publisher. These relations involve questions, not so much of

and common law provisions. There has been more or less desire on the

part of authors to include business relations within copyright statutes,

and in fact the recommendations of the American (Authors) Copyright

League to the initial copyright conference of 1905 covered several

points of business law, as for instance the right of an author to

recover possession of his work from the publisher in case the publisher

failed to keep it in print, or the right to prevent assignment of

publication rights to a publisher unsatisfactory to the author. It was,

however, determined, both in the conferences and by the Congressional

Committees, to omit as far as practicable from the copyright law all

questions of business relationship, and to leave these to specific

contracts between author and publisher or to the general provisions of

law. The law, whether as to copyright or other matters, should afford a

basis of certainty for business, but it cannot wisely interfere with

freedom of contract between the parties to a business transaction.

{Sidenote: The German publishing law of 1901}

{Sidenote: Editions}

{Sidenote: Alterations}

American and English statutes accordingly make no special regulation of

the calling of publisher. Provision is, however, made in some

continental countries for the regulation of publishing and publishers,

as in Germany, where a law of June 19, 1901, passed coincidently with

the general copyright code, covers this field in remarkable detail. It

provides that the author, during the continuance of the publishing

contract within the copyright period, may not reproduce or distribute

the work otherwise than through the publisher, except in translation,

dramatization (or if a play, novelization) or elaboration of a musical

work which is not merely a transposition or arrangement. The author is

privileged to include his work in a collected edition twenty years after

publication, or an article from a collective work after one year; and

the publisher may not republish in such form under the contract. Unless

otherwise specified, the publisher is entitled to print only one

edition, if undefined one thousand copies, in addition to extra copies

for replacing damaged copies and not more than five per cent free

copies; destroyed copies may be replaced on notice to author.

Opportunity for revision must be afforded to the author in new editions.

Alterations are permitted to the author before reproduction and at his

expense during the progress of the work, but he cannot be charged for

alterations necessitated by new circumstances. The publisher may not

make alterations or abbreviation of text or title, except those to which

the author cannot fairly refuse consent.

{Sidenote: Issuance of work}

The publisher must issue the work in suitable form in accordance with

the customs of the trade and the character of the book, and immediately

after receipt of the complete work or completed separate part. The

publisher must take measures to keep the book in stock. He is not bound

to produce a new edition, but if on request from the author he fails to

do so, the publishing right reverts to the author. The publisher may

cancel the contract, if the purpose of a work no longer exists, on

payment of remuneration to the author. Proof for correction must be

furnished to the author.

{Sidenote: Price and remuneration}

The publisher may fix and reasonably reduce the price, but can raise it

only with consent of the author. If remuneration is not specified, an

equitable payment is required, and the remuneration is due on the

delivery or on the appearance of the work, or if determined by sale,

then yearly, with opportunity to the author to verify the account from

the publisher's books. The author is entitled to free copies to the

extent of one per cent of the edition, but not less than five nor more

than fifteen, and to additional copies at the lowest trade price. The

author is entitled to return of his manuscript after reproduction, if

stipulated at the beginning.

{Sidenote: Assignment}

The publisher may assign, in the absence of agreement, but not for

separate works; though for this last, consent cannot unreasonably be

withheld and may be presumed if the author does not reply within two

months to a demand; and the assignee becomes, jointly with the original

publisher, liable to the author for future performance of the contract.

When a contract is completed by the issue of specified editions or

copies, the publisher is bound to notify the author, and if the contract

is for a definite time, the publisher is not entitled to distribute

remaining copies after that time. In case of delay in the contracted

delivery of the work, the publisher, after a reasonable extension of

time, may decline the work, unless delay involves only insignificant

loss; and in case the work is not of stipulated quality, the publisher

may also cancel the contract or require damages for non-fulfillment. The

author has analogous rights as against the publisher.

{Sidenote: Accidental destruction}

{Sidenote: Delivery}

If the work is accidentally destroyed after delivery to the publisher,

the author is entitled to remuneration, but the contract terminates; but

the author must, if practicable, rewrite it for additional remuneration

or may reproduce it gratuitously and require publication. Like rights

may be enforced by either party in case of destruction for which the

other is responsible. Delivery is implied when the publisher is placed

in position to accept the work. If the author dies after delivery of

part of his work, the publisher may maintain his rights in the part

delivered on specified notice to heirs; and if the author is absolutely

prevented from completing his work, the publisher has like right to the

portion already prepared. The author may withdraw from his contract

before reproduction of his work or a new edition is begun, if justified

by unforeseen circumstances, on remuneration of publisher's expenses;

but if he publishes elsewhere within a year, he must also pay damages

for non-fulfillment of contract to the original publisher, unless the

latter has declined to resume the contract.

{Sidenote: Bankruptcy of publisher}

{Sidenote: Non-copyright work}

The relations of a publisher in case of bankruptcy are specifically

treated, and the regulations of the civil code and general legal

principles are specifically applied to cancellation of publishing

contracts. On a non-copyright work, an author must not conceal from the

publisher that he cannot transfer exclusive right of publication; but

the author must act toward the publisher as though the work were

copyrighted, at least until six months after publication.

{Sidenote: Articles in periodicals}

The law is made applicable to articles in periodicals or portions of

collective works. An article in a newspaper is at the disposal of the

author immediately after publication; an article in other periodicals

after one year, unless exclusive continuing right has been sold to the

publisher. A publisher is free to make usual alterations in an unsigned

article. The author of an article may cancel his contract and obtain

remuneration in case it is not published within a year after delivery,

but damages can be claimed only in case a time of publication has been

named by the publisher. The author of a newspaper article has no claim

to free copies or special terms. In the case of a work planned by the

publisher, or a collaborative, supplementary or collective work

commissioned by the publisher, the publisher is not bound to reproduce

and distribute the work. The law is made applicable in case the contract

with the publisher is made by another than the author. Appeal is

authorized to the Supreme Court of the Empire.

It is impracticable to cite all the details of this extraordinarily

detailed law, but the provisions summarized afford a remarkable

conspectus of German practice on business questions possibly arising

between author and publisher, useful in relation to American and English

practice.

{Sidenote: The publisher as merchant}

{Sidenote: "Outright" transfer}

The publisher is the merchant for the author, and the remuneration which

he can pay to the author is limited by the price and sale which he can

obtain from the book-buying public. The relation between author and

publisher should be, as previously emphasized, most fully, clearly and

specifically set forth in the initial contract. "Agreements between

author and publishers," said Vice Chancellor Page Wood in 1857 in Reade

_v._ Bentley, "assume a variety of forms. Some are so clear and explicit

that no doubt can arise upon them. Thus, where an author assigns his

which leaves no room for uncertainty as to the rights of the parties."

The work may indeed be transferred "outright" without written contract,

by the delivery of the manuscript and payment of a bargained sum, in

which case the publisher becomes the proprietor and may take out the

treat it entirely as though his own, except that he cannot alter it to

the detriment of the author's reputation. But even in "outright" sale, a

specific contract is desirable and is indeed necessary if the author is

to agree with the publisher to apply for renewal and include the added

period in the term.

{Sidenote: "Joint adventure"}

More usually, the contract between author and publisher is on the basis

of a specified royalty--usual in America, or "half profits,"--more

common in England, in which case the relation is not that of partnership

but of a "joint adventure" terminable on notice unless it is made for a

stated time, or for one or more editions, of a specified number of

copies, or under other limiting conditions. In such case the expenses of

publication may be borne by the publisher, or the author may pay for the

plates or for the edition, and receive correspondingly larger return.

Unless there is actual or constructive partnership, the publisher, and

not the author, is liable for paper, printing, and like accounts. Or the

publisher may be simply the agent of the author in manufacturing his

book and selling for a stated commission. A contract of publication

usually implies exclusive right, but an author may contract with several

publishers under a license agreement; and on the compulsory license

system, often miscalled the "royalty plan," he must permit any

publisher, who will pay him the license royalty, to issue the work.

{Sidenote: Risk and profit}

It is by means of the profit on successful books that the publisher is

able to take risks with new books and new authors. It has been said that

of five books, three fail, one covers its cost, the fifth must pay a

profit to cover the rest. The element of risk in the book business is,

in fact, very large; if the author complains that his successful book

ought not to pay for others' unsuccessful books, he can get over the

difficulty by taking the risk himself.

{Sidenote: Long price and "net" price}

{Sidenote: Equities}

The publisher usually sells to the public through the retail trade at a

stated retail price, which may be either long price, in which case the

high price and large trade discount permit a discount to the public, or

"net" price, a lower price with less discount, which the bookseller is

expected to maintain. The practice of issuing books at "net" price is

growing, in the belief that through this policy larger sales are made

and the publisher's gains and the author's royalties fairly balance. On

the average, the publisher probably gets less per volume than the

author, and the system is essentially on an equitable basis. The

publisher's larger returns come from the fact that he handles more books

than any one author writes. The publisher has usually, in bargaining

with the author, the advantage of larger experience and superior

business ability, and of the fact that the author seeks him rather than

he the author; but no law can better the author in these respects. As a

matter of practice, the better publishing houses treat with new authors

on the same basis as with old, through a standard form of contract.

{Sidenote: The literary agent}

The author sometimes employs the "literary agent" as an intermediary in

finding a publisher, especially for a first book, and in making

arrangements with the publisher, for which the agent expects a stated

payment or a proportion of the author's returns. The advantages of such

intermediaries are offset by many disadvantages, and the best publishing

houses treat an author as liberally and fairly in direct as through

intermediate relations. In any event, the contract should be made and

signed directly between author and publisher, as a third-party contract,

or a double contract between author and agent and agent and publisher,

presents serious complication in the event of future differences. The

agent should not be given any lien on future works by the author. The

literary agent cannot accept conditions or make sale beyond the

authority given him by the author, and an innocent publisher may be held

responsible for acts beyond that authority, as in the English case of

Heinemann _v._ Smart Set Pub. Co., in 1909, where the defendants had

bought "serial rights" with leave to condense into one number, which the

agent had no authority to grant.

{Sidenote: Usual American contract}

In the publishing contract usual in America, the author "grants and

assigns" to the publishers the stated work, undertaking either to

their name, or as his attorneys in his name. The contract usually

includes all translations, abridgments, selections, dramatizations,

etc., or specifically reserves those to the author, the publishers in

the first case agreeing to share profits or otherwise remunerate the

author on such special forms. The author is expected to guarantee that

he is sole owner of the work and has full power to make the grant, that

the work is not a violation of any other copyright and that it is free

from scandalous or libelous matter.

{Sidenote: Publishers' obligations}

The publishers undertake to publish the work in such style as they deem

best suited to its sale, at their own expense, unless the author

contracts to pay for the plates or for other publishing costs, and

usually agree to account for sales semi-yearly or yearly and to make

payments within four months thereafter. The royalty is usually based on

the trade-list (retail) price, on the cloth or ordinary binding, or the

style of binding in which the largest number of copies shall have been

sold. It is frequently stipulated that on paper-bound copies, or

editions or copies for schools or subscription sale, or a foreign

market, or otherwise sold at a reduced price, the royalty shall be

reduced, and that on press and other free copies no royalty shall be

paid. When an author pays the cost of the edition or pays for making the

plates, he may contract to pay a commission to the publisher and obtain

the balance for himself, or he may contract for a larger percentage of

return to him than the usual royalty percentage. The publishers are

usually authorized to permit the printing of selections and to arrange

for translations, etc., subject to the arrangement indicated above. The

author is expected to pay for alterations either in full or above a

stated sum, as fifty dollars, and to provide any index or like equipment

if required.

{Sidenote: Reversion of contract}

Insurance is not usually required from the publishers, but in case of

fire or loss, the publishers have the option of reproducing the work,

and if they decline to do so, the contract usually provides for

reconveyance of the copyright to the author and the termination of the

agreement after the sale of copies remaining on hand. A publishing

contract sometimes provides that after a specified time from date of

publication, as two or five years, if the publishers consider that the

public demand does not justify continuing publication, or for other

reasons, they may offer to surrender their publishing rights on

compensation for the plates, as at half cost, and remaining copies, as

at cost, and if the author does not elect to accept this offer, then the

publishers may sell copies on hand free from royalty and terminate the

agreement, the copyright reverting to the author. The publishers are

usually authorized, in their discretion, to protect the copyright by

legal proceedings at their expense or at joint expense of publishers and

author.

{Sidenote: Scope of contract}

The contract may be for the full term of copyright, with or without

obligation on the part of the author to provide for renewal, or for a

stated number of years and thereafter until terminated on stated notice,

or it may be for a specified number of editions or copies. It is often

stipulated that on discontinuance, the author shall have the right to

take over the plates at cost or half cost and remaining copies at cost,

in default of which the publishers may sell copies free of royalty,--but

not continue to use the plates. If the book contains illustrations not

made originally for the work, the contract may provide that electrotypes

of them shall be transferred to the author for use solely in connection

with the work in case of reversion of the copyright to him. The contract

is usually drawn subject to assignment by either party, but only as a

whole; but the author may require that the work shall not be

transferred, to another publisher or otherwise, without his consent.

{Sidenote: Other works of author}

The contract may also reserve to the author a right to discontinue the

agreement in case the publishers elect not to publish other works, which

he may offer to them, or it may bind the author to offer subsequent

works to the same publishers. This keeps in view the ultimate

publication of a uniform collected edition of the author's works, which

may also be covered by a provision giving the author right to include

his work in a collected edition after a stated time.

{Sidenote: Standard contract}

The above summary gives the pith of a standard form of contract which

has been adopted, in more or less detail, by many American publishers,

and is usually kept in printed form by them. Owing to the careful

specifications in the American type of contract, there are fewer cases

in the American than in the English court records referring to the

relation between authors and publishers; and the English "half profits"

custom naturally leaves many more open questions of law and equity.

{Sidenote: Serial rights}

Where there are serial rights to be considered, as in the case of a

novel, the agreement between author and publisher should be very clear.

If an author contracts for a serial with periodical publishers who are

also book publishers, that contract should state whether rights for book

publication are involved or whether the author is left free to arrange

for book publication independently. Conversely, where an author

contracts for book publication, the contract should be explicit as to

whether the author or the publishers shall exercise or arrange for

serial publication, either before or after book publication.

{Sidenote: Republication of periodical articles}

Where an author furnishes an article or series of articles for a

periodical, it should be made clear, by letter or contract, whether the

periodical publisher also obtains the right to republish such articles

in other shape or whether such right reverts to the author, and if so,

how soon after publication of the periodical.

{Sidenote: Foreign markets}

In these days of increasing international relations, it is important

that the author should have a clear understanding as to whether he

retains the rights in other markets, whether in English speaking or

foreign countries; or conveys them to the publishers as within the

agreement, but to be separately accounted for; or assigns them as an

integral part of the transaction. As between America and England, many

publishing firms have branch houses or representatives in the other

country or are in special relations with an independent firm therein. If

the English market is conveyed, there should be a clear-cut

understanding as to whether this includes the Canadian, Australian and

South African rights. It is usual that a lower royalty is paid to the

author on sheets sold for another than the home market.

{Sidenote: Contract to do work}

The contract of an author with a publisher that he _will_ write a

specified book or work, is not usually enforceable by the courts through

specific performance, for the simple reason that a court has no means of

compelling an author to use his brain for a certain purpose, and the

remedy against the author in this event is rather a suit for loss by

failure to perform the contract, which loss is difficult to prove. If

any remedy is to be provided, it should be stated in the contract as a

specified penalty to be paid by the author,--a provision seldom included

in publishing contracts. That an author may be held liable for a breach

of contract if he declined without good cause to complete a work already

partly delivered, was indicated in the early English case of Gale _v._

Leckie in 1817. An agreement to write a book may stand as an equitable

assignment on the completion of the book, as was held in Ward, Lock &

Co. _v._ Long, in 1906 in the Chancery Division by Justice Kekewich.

{Sidenote: Contract not to write}

An author who has contracted not to write on a stated subject or for

other publishers, may be enjoined from such act. This was decided by

early English precedents, as when in the case of Morris _v._ Colman, in

1812, Lord Chancellor Eldon held that Colman, in virtue of his contract

to write plays for the Haymarket Theatre and for no other, could be

restrained from furnishing plays to another theatre, though he could not

be compelled to write plays; the same judge, in Clarke _v._ Price, held

in 1819 that he could neither compel Price to continue to furnish

Exchequer reports to the plaintiff publisher nor restrain him from

furnishing such reports to another publisher, because the contract

contained no specific provision to the latter effect. It is probable

that the undertaking of an author not to prejudice the sale of his book

by writing another of like subject, though under a different title, may

be enforced even against a succeeding publisher who had no knowledge of

that undertaking, as was indicated in Barfield _v._ Nicholson in 1824.

Thus publishers were granted equitable relief against an author who had

sold to other publishers modifications of an arithmetical series of

which the copyright had been sold to the plaintiffs, in Wooster _v._

Crane in the U. S. Circuit Court of Appeals, in 1906. In Brooke _v._

Chitty, however, in 1831, Lord Brougham declined to restrain Chitty from

writing a certain book, on the ground that the court could not act until

there was actual printing and publication. The publisher, _vice versa_,

cannot be restrained from publishing a rival work, even though it

competes directly with a work already published or contracted for,

unless that is distinctly forbidden in the contract with the first

author.

{Sidenote: Implied obligations}

If a publisher prints without special agreement a manuscript submitted

for approval, the courts will enforce reasonable payment; and in 1893,

in Macdonald _v._ National Review, in an English county court, it was

held that printer's proof sent by the publisher to the author, implied

acceptance for publication. That the publisher may be held responsible

for loss of a manuscript by the negligence of his employees, was held in

Stone _v._ Long, in the King's Bench Division, by Master Chitty in 1903.

An implied obligation to publish an accepted work was recognized in the

Canadian case of Le Sueur v. Morang, where the Canadian Supreme Court

affirmed in 1911 the decision that if a publisher withholds from

publication a work of which he had bought the copyright "outright," the

author might claim the work on return of the purchase money.

{Sidenote: Contract personal and mutual}

The contract between author and publisher is of a personal nature and

therefore not assignable, in the absence of specific provision, except

with consent of the other party. As it is with a particular author that

a publisher contracts for a book, so an author contracts with a

publisher of his choice and cannot be required to accept another. This

is especially true where, on a profit-sharing or royalty arrangement,

the author relies on the skill of the publisher for his market. Where E.

V. Lucas had arranged with Grant Richards to publish a work on half

profit, it was held in the Chancery Division in 1905 by Justice

Warrington in a suit against the publishers' trustee in bankruptcy, that

the contract was terminated by bankruptcy and that Mr. Lucas on fair

purchase of the remaining copies, might contract with another publisher.

There is more question when the contract is for a specified sum; and

where the copyright is assigned by outright purchase the rule would not

hold good, for the publisher then becomes the copyright proprietor. But

even when a publisher has bought a copyright "outright," he may not do

the author the wrong of printing the work in such altered shape as to

injure the author's reputation, as was held in 1832 in the English case

of Archbold _v._ Sweet, where a third edition of Archbold's legal work

printed "with very considerable additions," which the plaintiff showed

to contain gross blunders, was enjoined. But when work is done, to be

published under the name of another, the actual writer may not prevent

alteration by the employer, as was decided in Cox _v._ Cox in 1853, by

the Vice Chancellor. Such a personal contract cannot be transferred as a

bankruptcy asset, and on the bankruptcy of the publisher the rights

revert to the author, except that stock on hand may perhaps be sold to

another, who may not, however, distribute it to the disadvantage of the

author. The personal contract involves personal guarantee by each party

to the other of good faith and cooperative support, and neither party

may act to the disadvantage of the other. The author, during the

continuance of a publishing contract, must not permit the use of his

work otherwise, to the prejudice of the original publisher, and the

publisher must not sell copies to the injury of the future market of the

author.

{Sidenote: English development of this doctrine}

This general doctrine was worked out in a chain of early English cases,

the first of which was that of Sweet _v._ Cater, in 1841, where Vice

Chancellor Shadwell decided that the plaintiff publisher who had

contracted with Sir Edward Sugden to publish a tenth edition of 2500

copies of his legal work, could, until the specified copies were sold,

prevent the publishing of another edition by the defendant publisher,

despite any arrangements between the author and the latter. It was

strongly upheld by Vice Chancellor Page Wood in the case of Stevens _v._

Benning, in 1854, affirmed on appeal by the Lords Justices, and Reade

_v._ Bentley, in 1857. In the first case Forsyth contracted for the

publication of his legal work, undertaking to make future revision for

subsequent editions, with the publishing firm of the elder Benning, and

on its bankruptcy, four hundred copies of the second edition were sold

to Stevens & Norton, which firm sued to prevent the younger Benning from

publishing a third edition as revised by Forsyth. The Vice Chancellor

held that though the plaintiffs might presumably sell the copies, if

done without disadvantage to the author, the original contract was not

an assignment, but a personal contract which could not pass to the

plaintiffs, and therefore denied an injunction. In the second case,

where Charles Reade sought to resume his rights in "Peg Woffington" and

"Christie Johnstone," from his publisher Bentley, after all expenses had

been paid and profits on several editions accounted for, the Vice

Chancellor held that the contract, as of a personal nature, could be

terminated by the author when that did not involve loss to the other

party. Copies printed to replace others destroyed by fire were decided

in the case of Blackwood _v._ Brewster, in 1860, in the Scotch Court of

Session, not to constitute a new edition. In the later case of Hole _v._

Bradbury, in 1879, a joint author and the heir of a deceased joint

author of "A little tour in Ireland" were adjudged by Justice Fry to be

entitled to resume their rights and to recover the illustrations from

publishers who had succeeded to the business of the original publishing

firm.

{Sidenote: Author's transfer to other publishers}

In Warne _v._ Routledge, in 1874, where Mrs. Cook sought to transfer

from one publisher to another without notice a book of which 44,000

copies had been printed and 42,000 sold, the plaintiff publisher sought

to restrain the defendant from issuing a new edition until the remaining

copies had been sold. Sir George Jessel, M. R., held that the right of

publishing was an exclusive one for the time of the contract, though the

word exclusive was not used, but that the author could provide for

publication by another publisher immediately on terminating a

contract,--a decision which has been criticized as not compatible with

other decisions nor sound law.

{Sidenote: Proprietary name}

Where a proprietary name becomes identified with a publication, an

assignment of the work may estop the person named from use of his name

or advertisement of his service elsewhere, as in the English case of

Ward _v._ Beeton, in 1875, where the originator of "Beeton's Christmas

Annual," who had been dismissed by the publishers of that work, was

restrained from advertising that he would edit a similar publication for

another publisher. But the editor's name is not necessarily part of the

title, and an editor may not restrain its omission from the title-page,

as was held in the English case of Crookes _v._ Petter, in 1860.

{Sidenote: Copies remaining unsold}

It was decided in the English case of Howitt _v._ Hall, in 1862, by Vice

Chancellor Page Wood, that where a publisher had procured from an author

the copyright for a limited term, in that case four years, he had the

right to sell, after the expiration of the contract term, copies printed

in good faith within the term, though the court indicated that if there

had been an excessive printing of the work with the evident purpose of

stocking up for sale after expiration of the contract, such course would

not be permitted. This precedent indicates that a publisher would have

the right to sell copies printed during the original term of copyright

and remaining in stock, even if an author under the renewal provision of

the American code exercised the right to make arrangements with another

publisher for the renewal term. To like effect it was decided in the

English case of Taylor _v._ Pillow, in 1869, by Vice Chancellor James,

that a copyright proprietor assigning the copyright might thereafter

dispose of copies of a song remaining unsold, in the absence of

stipulations to the contrary. These questions are usually decided in

advance in American publishing practice by provision in the contract

between author and publisher that copies remaining unsold at the end of

the contract term may be reclaimed by the author at a stated price--and

some such provision is always desirable.

{Sidenote: American confirmation}

The same doctrine was upheld in the American case of Pulte _v._ Derby,

in 1852, in the U. S. Circuit Court by Judge McLean, who held that where

the contract for publishing a second edition provided that the

publishers might print as many copies as they could sell, the publishers

might make successive printings in that edition, and that the use of the

words "third edition" on the title-page did not terminate the

arrangement. The author could not meantime publish otherwise, but the

publishers, who held legal title to the copyright within the terms of

the contract, could not exercise rights beyond the second edition, nor

could they assign their rights.

{Sidenote: Renewal term}

American publishers usually expect the author to make a contract for the

entire copyright period, and to make application in their behalf for the

renewal term. It is true that the very large percentage of books lose

their value long before the close of the original term, and that the

percentage where renewal is desirable is very small.

It was a thought to which "Mark Twain's" mind often recurred that a long

the end of one or two decades, and he frequently put forward a scheme

for extending copyright from period to period, based on the issuance of

a cheap edition under the author's sanction. This scheme, which he

presented in some detail at the time of the Congressional copyright

hearings, did not receive support from other students and advocates of

{Sidenote: License not assignment}

A contract giving publishers the "whole and exclusive right of

publication," was decided _In re_ Clinical Obstetrics by the Chancery

Court, through Justice Warrington, in 1908, to be a personal contract

and license, not an assignment of copyright, and the assignment entries

were ordered to be expunged, in line with the decision in 1907 by the

Court of Appeal in _Re_ "The Liedertafel series" _et al._

{Sidenote: Author's and publisher's profits}

The publication of a book involves many indirect expenses, in addition

to the direct cost of manufacture, such as the share of general office

expenses, the large item of advertising and the like. These are

difficult to allot, and this helps to make the "half profits" system a

fruitful occasion of disagreements. On this system or on the commission

basis, the nature and proportion of these indirect charges should be

clearly set forth in the publishing agreement. On a "half profit" or

similar plan, the publisher is not considered to be entitled to make his

own profit on paper, printing, etc., but must account for these at the

cost to him; and in any event the publishers' accounts must be fully

open to the author. On the whole, the payment of royalty, on the usual

American plan, is more satisfactory. The customary royalty is ten per

cent, or in the case of authors of established reputation whose works

have large sale, as high as fifteen or twenty per cent, when the

publishers cover all expenses, except that on school books and

"subscription" editions the royalty is usually five per cent. When an

author pays for the plates or for the edition, the return is

substantially higher, as fifteen or twenty per cent to the ordinary

author. The royalty is usually reckoned on ordinary cloth binding,

unless otherwise stated in the contract, and almost invariably not on

copies printed, but on copies sold. A royalty on "all copies sold" was

construed in the King's Bench Division by Justice Walton, in Neufeld

_v._ Chapman in 1901, to cover all forms of publication, including

royalty on a proportionate part of the sales price of a periodical.

{Sidenote: The publisher's share}

The publisher does not, as is sometimes assumed, get the other ninety

per cent as profit; he gets the difference between the receipts from the

trade or public on copies _actually sold_--averaging perhaps two thirds

of the "retail price," on which the author's ten per cent (really thus

fifteen per cent) is reckoned--and the cost of making the _entire

edition_ and of advertising and marketing the book. The author, in any

event, gets a return proportioned to the success of his book. If its

sales are small, the publisher makes a loss; if large, the publisher

makes a profit increasing proportionately after the initial outlay for

publication has been covered.

{Sidenote: "Author's editions"}

{Sidenote: Printer's lien}

When an author arranges with a publisher or printer to issue a book at

author's expense, such editions being usually known as "author's

editions," great care should be taken to make such arrangements only

with publishers or printers of known and high character and to base them

on a complete and exact written contract, defining particularly the

amount of commission or royalty to be paid by or to the author, or the

expenses to be allowed before reckoning "half profits." Publishers of

good repute make such arrangements in the case of books not likely to

show adequate commercial profit, but there are publishers and printers

who make a business of such transactions with authors without adequately

providing to give the author the best possible market, and these cannot

always be expected to deal fairly with him. Arrangements made directly

between an author (or publisher) and a printer as such, are scarcely

within the scope of this work, but it may be said briefly that a printer

usually has a mechanic's lien on plates he has made or sheets he has

printed (but not on plates used by him unless he has made them), until

the bills are paid; and that he may not demand payment until the work

has been completed, or in case of its destruction by fire or otherwise,

previous to complete delivery, in the absence of contract obligation for

advance or partial payment.

{Sidenote: Compulsory license system}

The compulsory license system, often miscalled "the royalty

plan,"--discussed in England in 1877 as the Farrer proposal and in

America about 1890 as the Pearsall-Smith scheme,--is provided by

legislation under which any publisher may publish a work without consent

of the author provided he pays a royalty as specified or stipulated in

the law, as ten or five per cent or a fixed sum per copy. This system

has unfortunately been adopted in the new American code, with reference

to the mechanical reproduction of music, though with the saving clause

that the author has complete right to forbid mechanical reproduction of

his musical composition so long as he does not license any manufacturer.

This American precedent has been followed as to mechanical music in

recent legislation by Germany and other continental countries and in the

modified British measure. The Italian copyright law has, however, a

compulsory license provision for the second forty years of copyright,

under which any publisher can issue a book on payment to the author of

five per cent royalty; and the new British measure contains a like

provision applicable twenty-five or thirty years after the author's

death, on a basis of ten per cent royalty.

{Sidenote: License payments}

The American provision is for two cents for each roll, under elaborate

regulations, as set forth in the chapter on mechanical music provisions.

It is doubtful whether those regulations can be effectively applied, and

indeed the whole provision may prove unconstitutional because of its

interference with the right of sale or license involved in private

property. The several substitutes for these regulations proposed and

discussed, were rejected as even less desirable--as the proposal that

the Copyright Office itself should undertake an elaborate system of

accounting and guarantee to the author as practically a ward of the

state, and another proposal for a system of stamps to be affixed to each

copy published, supplied by the Copyright Office or the author and sold

to the publisher, a system actually in practice in shoe manufacture

under the royalty system of the McKay Shoe Manufacturing Company. The

answer to all these schemes is that the author should be at liberty to

make such arrangements, by contract with one publisher or with many, as

he may please, and that a law to compel him to adopt any one plan of

marketing his wares would interfere with his freedom of choice and his

natural return.

{Sidenote: Saving through single publisher}

The reason that an author chooses one publisher instead of many is the

simple one that the original cost of making and advertising a book is in

this way reduced to one outlay instead of multiplied in many, and that

this cost is minimized by being distributed over the largest possible

edition. It is the practice of any successful publisher to plan for such

an edition as will command the widest sale, and so distribute the

original cost over as many copies as possible, and when a copyright book

proves to be of such general demand that different styles of editions

can be sold, such editions are in fact made by the same publisher. The

compulsory license system would only protect the public against the

unwisdom of publishers, whose mistakes are presently corrected by

business failure or by the transfer of his books by the author to more

enterprising houses.

{Sidenote: Copyrights in bankruptcy}

Copyrights are specifically included, with patents and trade-marks, in

the bankruptcy acts as assets which pass to the trustee, which applies

to a bankrupt author as well as to other copyright proprietors, but as

previously stated, this does not include the personal contract for the

publication of an unassigned work. This last doctrine was fully upheld

in the English case of Griffith _v._ Tower Pub. Co. & Moncrieff, in

1897, by Justice Stirling, where the liquidator of a corporation was

enjoined from transferring a copyright direct to a publisher not

acceptable to the author. A manuscript as such is a tangible asset in

bankruptcy if of value in itself, but the right of the author to

right, which therefore does not pass in case of bankruptcy, and a court

would probably not undertake to compel an author to realize the value of

an unpublished work for the benefit of creditors by publication and

to complete his work, as was decided in 1841 in the English case of

Gibson _v._ Carruthers.

{Sidenote: Copyrights in taxation}

Copyrights, like patents, are subject to the inheritance tax, as

capitalized on the basis of income. In the appraisal of 1911 of the

copyrights of Mrs. Mary Baker G. Eddy, author of "Science and health,"

and other Christian Science books, the valuation returned for tax

purposes reached $1,400,000, which is probably the largest valuation

ever put upon the copyrights of any one author. The copyrights of the

late Marion Crawford were appraised by the New York State tax

authorities, in the same year, by valuing his last novel at the income

during its first year of publication and his earlier novels at the

income for three years passed. Neither method afforded a fair valuation,

as a work may be dead after its first year, and the test by income

through successive years would depend on whether sales were decreasing

or increasing during the period. Standard school books are sometimes

estimated as worth three years' income, but such a generalization would

not apply in other cases. Each valuation, for tax or sales purposes,

must depend upon the circumstances in each case. An inheritance or other

tax on copyrights, which are intangible property, may fairly be

questioned, in view of the uncertainty whether the legatees may realize

any future return from the property.

XXIII

THE LITERATURE OF COPYRIGHT

{Sidenote: Bibliographical materials}

The literature of copyright is extensive and its bibliography would now

make a volume in itself. The bibliography of literary property prepared

by Thorvald Solberg, now Register of Copyrights, for the Bowker-Solberg

volume of 1886, occupying sixty pages, covered approximately fifteen

hundred titles, besides analytical indexes to several periodicals. The

bibliography to the present date, inclusive of that material, which

twofold. The copyright campaign resulting in the code of 1909 was

especially prolific of drafts and bills, Congressional and other reports

and private publications, of which "dry as dust" indication is given in

the earlier chapter containing the record of that campaign. Nothing more

can be attempted in this chapter than a brief glance over historical

material and leading works.

{Sidenote: Early history}

The early history of copyright is to be traced only through incidental

references in classical and medieval works. Among these may be instanced

Montalembert's "Monks of the West" and Brown's "History of the printing

press in Venice," previously cited. George Haven Putnam's work on "Books

and their makers in the Middle Ages" (New York, Putnams, 1896-97, 8vo, 2

v., 459, 538 p.), though dealing chiefly with publishing relations,

incidentally gives much information on the early history of printing

privileges and copyrights proper. Several of the law book writers,

notably Copinger, summarize in some measure the early history of

{Sidenote: Early American contributions}

Perhaps the earliest American publication distinctively on copyright was

the "Remarks on literary property," by Philip H. Nicklin, in 1838, in

which he included as an appendix a reprint of Joseph Lowe's summary of

Britannica supplement, and argued for longer, if not perpetual copyright

for our own authors, on the plea that "charity begins at home," as well

as for international copyright throughout a world-wide republic of

letters. The later movements in America for international copyright

brought out much writing, though largely in periodical articles and

pamphlets, among the most noteworthy of which were Dr. Francis Lieber's

letter "On international copyright," of 1840, Henry C. Carey's "Letters

on international copyright," of 1853, and "The international copyright

question considered," of 1872, George Haven Putnam's monograph on

"International copyright," of 1878, and Richard Grant White's "American

view of the copyright question," of 1880.

{Sidenote: Later American pamphleteers}

During the copyright campaign leading to the act of 1891, several

pamphlets were issued on behalf of the American (Authors) Copyright

League, notably Rev. Dr. Henry van Dyke's "National sin of piracy," of

1888, and Prof. Brander Matthews's "Cheap books and good books," on the

texts of James Russell Lowell's epigram, "There is one thing better than

a cheap book, and that is a book honestly come by," and George William

Curtis's words, "Cheap books are good things, but cheapening the public

conscience is a very bad thing,"--which last paper is reprinted in

Putnam's "Question of copyright."

{Sidenote: American treatises}

The leading American law book writer has been Eaton S. Drone, later

editor of the New York _Herald_, whose valuable "Treatise on the law of

property in intellectual productions in Great Britain and the United

States" (Boston, Little, Brown & Co., 1879, 8vo, 774 p.) covered

comprehensively the general copyright legislation of 1870-74, and

superseded the earlier standard American law book, George Ticknor

Curtis's work of 1847, "Treatise on the law of copyright ... as enacted

and administered in England and America." The volume on "Copyright, its

law and its literature," by R. R. Bowker and Thorvald Solberg (N. Y.

_Publishers' Weekly_, 1886, 8vo, 136 p.), the latter furnishing the

bibliography of copyright, included facsimile of the autograph

signatures in the memorial of American authors of 1885, and a reprint of

Sir James Stephen's digest of British copyright law, as well as the

revised statutes, constituting the copyright law of the United States at

that time. "The question of copyright," by George Haven Putnam (N. Y.,

Putnams, 1891, 12mo, 412 p.), brought into one compilation many of the

important documents and articles, including the text of the act of 1891.

A valuable digest of "Copyright cases, 1891-1903," American and English,

was compiled by Arthur S. Hamlin for the American Publishers Copyright

League (N. Y., Putnams, 1904, 8vo, 237 p.).

{Sidenote: Copyright Office publications}

The most valuable series of current publications on copyright are those

issued from the Library of Congress by the Copyright Office, under

that of Copyright Office _Bulletins_ issued at irregular intervals, of

which No. 14 presents the current copyright law and No. 15, issued in

1910, gives the "Rules and regulations for the registration of claims to

1906, contains the full text of "Copyright enactments of the United

States, 1783-1906," and No. 8, issued in 1905, "Copyright in Congress,

1789-1904," contains a bibliographical and chronological record of all

proceedings in Congress. Several bulletins were issued during the

preparation of the law of 1909, of which the most important was No. 9,

giving the "Provisions of the United States copyright laws with a

summary of some parallel provisions of the laws of foreign countries."

No. 5 covers copyright in England, presenting the full text of copyright

acts from 1875 to 1902, including and supplementing Sir James Stephen's

digest of British copyright law; No. 6, "Copyright in Canada and

Newfoundland" up to 1903; No. 7, "Foreign copyright laws now in force"

up to 1904; No. 11, "Copyright in Japan" up to 1906; and No. 13, the

documents of the International Copyright Union, including the Berlin

convention of 1908. Bulletins No. 1 and 2 cover the former copyright law

and directions for registration under it. Many of these bulletins are

already out of print. A minor series is that of _Information circulars_,

of which forty-five have been published, many of them now out of date

and superseded, covering from time to time current information as to

laws, proclamations, treaties, etc., domestic and foreign, as well as

opinions of the Attorneys-General, custom regulations and the like.

{Sidenote: Labor report}

A report on the effect of the international copyright law by the

Commissioner of Labor, Carroll D. Wright, was presented to the Senate in

1901.

{Sidenote: English contributions about 1840}

reference here. "The great debate," led by Serjeant Talfourd on one side

and Lord Macaulay on the other, is recorded in Hansard's Parliamentary

Debates (third series, volume LVI of 1841), and the speeches of the two

combatants are reprinted in their respective works. John James Lowndes's

"Historical sketch of the law of copyright" was printed in 1840, with

especial reference to Serjeant Talfourd's bill, and contained an

appendix on the state of copyright in foreign countries--America,

France, Holland and Belgium, the German states, Russia, Denmark, Norway

and Sweden, Spain, and the Two Sicilies. "A plea for perpetual

caustic "Petition on the copyright bill" is included in his "Critical

and miscellaneous essays."

{Sidenote: Later English contributions}

Among the later noteworthy contributions to the subject were the caustic

denunciation of international piracy by Charles Reade, the novelist,

under the title "The eighth commandment," reprinted in America by

Ticknor & Fields, in 1860; Matthew Arnold's _Fortnightly_ article of

1880, on "Copyright," printed in the volume of his collected works

containing his "Irish essays"; John Camden Hotten's seven letters on

"Literary copyright," in a volume of 1871; and Walter Besant's volume

"The pen and the book," of 1899, containing a special chapter on

British Society of Authors. Herbert Spencer made several contributions

to the subject, some of which were reprinted in his "Various fragments."

{Sidenote: English legal treatises}

There had been published, so early as 1823, the first edition of Richard

Godson's "Practical treatise on the law of patents for inventions and of

standard English work, being supplemented in 1832 with an abstract of

the laws in foreign countries and republished in a second comprehensive

edition in 1840 by Saunders & Benning, London; in 1844 this second

edition, with a supplement covering the recent laws, was reissued by W.

Benning & Co., in an octavo of 700 pages, and in 1851 a separately

published supplement by Peter Burke brought Godson's work up to that

date. Another early English law book was Robert Maugham's "Treatise on

the laws of literary property, comprising the statutes and cases; with

an historical view and disquisitions," published by Longmans in 1828.

The standard work of W. A. Copinger on "The law of copyright, in works

of literature and art," first published in 1870 and reissued in a fourth

edition, as edited by J. M. Easton (London, Stevens & Haynes, 1904, 8vo,

1155 p.), includes as well as English and American decisions, chapters

on international copyright and on copyright in foreign countries, with

full text of English and many foreign statutes, and many legal forms. A

work by J. H. Slater covered "The law relating to copyright and

trade-marks" (London, Stevens, 1884, 8vo, 466 p.), in the form of a

digest of the more important English and American decisions. The writer

of the York Prize Essay of the University of Cambridge for 1882, T. E.

Scrutton, rewrote and extended his work under the title of "The law of

Clowes, 1893, 4 ed., 8vo, 356 p.). B. A. Cohen published a compact study

of "The law of copyright" in 1896.

{Sidenote: Birrell's lectures}

Augustine Birrell, as Quain Professor of law at University College,

London, delivered a series of lectures in 1898, of which seven were

printed in his delightfully readable little volume on "The law and

history of copyright in books" (London, Cassell, 1899, 12mo, 228 p.).

{Sidenote: MacGillivray's works}

The latest English law book writer is E. L. MacGillivray, whose

"Treatise upon the law of copyright," British and American (London,

Murray, 1902, 8vo, 439 p.) is extremely valuable as a case digest, with

foot-note references to cases. This was followed by a brief "Digest of

the law of copyright," English only, prepared by the same writer for the

Publishers Association of Great Britain and Ireland (London,

Butterworth, 1906, 12mo, 106 p.). The same association has printed

annually from 1901, a digest of "Copyright cases," which are collected

in two volumes, for 1901-04 and 1905-10 inclusive, also edited by Mr.

MacGillivray.

{Sidenote: English special treatises}

Special English treatises on specific classes of copyright protection

are Colles and Hardy's "Playright and copyright in all countries"

(London, Macmillan, 1906, 8vo, 275 p.); Edward Cutler's "Manual of

musical copyright law" (London, Simpkin, Marshall, 1905, 8vo, 213 p.);

Reginald Winslow's "The law of artistic copyright" (London, Clowes,

1889, 8vo, 215 p.); Edmunds and Bentwich's "The law of copyright in

designs" (London, Sweet & Maxwell, 1908, 2 ed., 8vo, 488 p.); Knox and

Hind's "Law of copyright in designs" (London, Reeves & Turner, 1899,

8vo, 264 p.); and William Briggs's comprehensive treatise on "The law of

international copyright" (London, Stevens & Haynes, 1906, 8vo, 870 p.),

the most important publication in English in its field.

{Sidenote: Parliamentary and Commission reports}

The Parliamentary papers giving reports of special commissions, referred

to in previous chapters, constitute an important part of the English

literature of copyright, the most notable being the report of the Royal

the law as then existing, and a supplementary blue-book of evidence; the

report of the Musical Copyright Committee appointed by the Home

Department, of 1904; the report of the Law of Copyright Committee

appointed by the President of the Board of Trade, of 1909, with

accompanying minutes of evidence; and the minutes of the Imperial

printed in progressive form--on its first introduction, July 26, 1910,

on its reintroduction, March 30, 1911, as it emerged from committee,

July 13, 1911, and as it went to the Lords, August 18, 1911.

The pending Canadian bill has been printed only as introduced April 26,

1911, but the government has supplied an accompanying memorandum

comparing its provisions with existing law.

{Sidenote: Cyclopaedias and digests}

The American and English law cyclopaedias and digests also give

references to copyright cases and decisions, some in special chapters,

more or less comprehensive of recent copyright interpretations.

{Sidenote: French works}

The most recent authoritative French works on literary property are

Eugene Pouillet's "Traite theorique et pratique de la propriete

litteraire et artistique" (Paris, Marchal & Billard, 3d ed., 1908, 1028

p.); Gustave Huard's "Traite de la propriete intellectuelle, v. 1.

Propriete litteraire et artistique" (Paris, Marchal & Billard, 1903, 400

p.), and A. Huard and Edouard Mack's "Repertoire de legislation, de

doctrine et de jurisprudence en matiere de propriete litteraire et

artistique" (Paris, Marchal & Billard, 1909, 740 p.). An earlier

elaborate work is that of Claude Couhin, "La propriete industrielle,

artistique et litteraire" (Paris, Larose, 1894), in three volumes.

{Sidenote: German works}

For Germany the text of the general copyright law of June 19, 1901, of

the law relating to figurative arts and photographs of January 9, 1907,

and the amendatory law including mechanical music reproductions, May 22,

1910, should be consulted. Otto Lindemann's "Das Urheberrecht an Werken

der Literatur und der Tonkunst" (Berlin, Guttentag, 1910, 3d ed., 16mo,

155 p.) is a brief compilation of and comment on these laws of 1901 and

1910. The most recent and authoritative general works are Prof. Josef

Kohler's "Urheberrecht an Schriftwerken und Verlagsrecht" (Stuttgart, F.

Enke, 1907, 527 p.), though some of his statements of theory have given

rise to criticism and dispute, and his "Kunstwerkrecht" (Stuttgart,

Enke, 1908, 191 p.), Daude's "Die Reichsgesetze ueber das Urheberrecht an

Werken der Literatur und Tonkunst und das Verlagsrecht" (Berlin,

Guttentag, 1910, 293 p.), and Dr. Albert Osterrieth's "Das Urheberrecht

an Werken der bildenden Kuenste und der Photographie" (Berlin, Heymann,

1907, 312 p.).

{Sidenote: Early German contributions}

In the early German literature of copyright should be noted the works of

Puetter, sometimes called the father of the modern theory of property in

intellectual productions, who wrote as early as 1764, an edition of

whose "Beytraege zum Teutschen Staats- u. Fuersten-Rechte" was published

in Goettingen in 1777; and the tractate of Immanuel Kant, "Von der

Unrechtmaessigkeit des Buechernachdrucks," which may be found in his

collected works.

{Sidenote: Italian works}

The most important Italian work of recent issue is that of Eduardo

Piola-Caselli, "Del diritto di autore" (Naples, E. Marghieri, 1907, 875

p.), and earlier works of standard character are Enrico Rosmini's

"Legislazione e jurisprudenza sui diritti d'autore" (Milan, M. Hoepli,

1890, 671 p.), and Pietro Esperson, "De' diritti di autore sulle opere

dell'ingegno ne' rapporti internazionali" (Torino, Unione

tipografico-editrice, 1899, 278 p.).

{Sidenote: Spanish compendium}

A useful compendium of Spanish copyright law of 1879 _et seq._, covering

both the Peninsula and the _ultramar_ colonies, was published in Havana

by La Propaganda Literaria, in 1890, as edited with an interesting

comparison of Spanish law with that of Great Britain and America by D.

F. G. Garofalo y Morales.

{Sidenote: International compilations}

A most valuable compilation of the copyright laws and treaties of all

countries, comprising a literal translation into German of about 250

acts, is "Gesetze ueber das Urheberrecht in allen Laendern," edited in a

second edition by Prof. Ernest Roethlisberger (Leipzig, Hedeler, 1902,

418 p.), which was complemented by his summary of the domestic and

international law of copyright in the different countries, "Der interne

und der internationale Schutz des Urheberrechts," also in its second

edition (Leipzig, Boersenverein der deutschen Buchhaendler, 1904, 116

p.), comprising references or mentions covering fifty-seven countries

and forty-nine colonies, especially the British colonies. With these

should be mentioned "Recueil des conventions et traites concernant la

propriete litteraire et artistique," published under the auspices of the

Bureau of the International Copyright Union (Berne, Bureau de l'Union

internationale, 1904, 8vo, 908 p.). These works are supplemented by the

publication from month to month in the _Droit d'Auteur_ of Berne, of

which Prof. Roethlisberger is the editor, of new conventions, treaties,

laws and other material, bringing world-information up to date.

APPENDIXES

UNITED STATES OF AMERICA: COPYRIGHT PROVISIONS

1. UNITED STATES COPYRIGHT CODE OF 1909

AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT

{Sidenote: Exclusive right to print, publish and vend}

_Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled_, That any person entitled

thereto, upon complying with the provisions of this Act, shall have the

exclusive right:

(a) To print, reprint, publish, copy, and vend the copyrighted work;

{Sidenote: To translate, dramatize arrange and adapt, etc.}

(b) To translate the copyrighted work into other languages or dialects,

or make any other version thereof, if it be a literary work; to

dramatize it if it be a non-dramatic work; to convert it into a novel or

other non-dramatic work if it be a drama; to arrange or adapt it if it be

a musical work; to complete, execute, and finish it if it be a model or

design for a work of art;

{Sidenote: To deliver lectures, sermons, etc.}

public for profit if it be a lecture, sermon, address, or similar

production;

{Sidenote: To represent dramatic works, or make record, or exhibit or

perform, etc.}

(d) To perform or represent the copyrighted work publicly if it be a

drama or, if it be a dramatic work and not reproduced in copies for

sale, to vend any manuscript or any record whatsoever thereof; to make

or to procure the making of any transcription or record thereof by or

from which, in whole or in part, it may in any manner or by any method

be exhibited, performed, represented, produced, or reproduced; and to

exhibit, perform, represent, produce, or reproduce it in any manner or

by any method whatsoever;

{Sidenote: To perform music and make arrangement, setting, or record}

{Sidenote: Act not retroactive.}

{Sidenote: Music by foreign author}

{Sidenote: Control of mechanical musical reproduction}

{Sidenote: Royalty for use of music on records, etc.}

{Sidenote: Notice of use of music on records}

{Sidenote: License to use music on records}

(e) To perform the copyrighted work publicly for profit if it be a